(APPEARANCES OF COUNSEL ENTERED) WELCOME TO ALL COUNSEL. I
INVITE YOU TO INCORPORATE ANY ARGUMENTS THAT HAVE BEEN MADE BEFORE YOUR TURN AT THE
PODIUM. THE VIRTUAL PODIUM COMES UP PLEASE TO SO AS APPROPRIATE. MS.
JARIT, PLEASE GO AHEAD. ELIZABETH C. JARIT: THANK YOU. I'D LIKE
TO RESERVE A FEW MINUTES FOR REBUTTAL. CHIEF JUSTICE RABNER:
THAT'S FINE. ELIZABETH C. JARIT: GROUNDED IN PRINCIPLES OF
FUNDAMENTAL FAIRNESS AND THE CONCEPT OF PEOPLE SHOULD BE ABLE TO RELY ON THEIR
RIGHTS AND PRIVILEGES WITHOUT FEAR THEY WOULD BE TAKEN FROM THEM RETROACTIVE
MANY BY THE GOVERNMENT IN ORDER TO SECURE A CRIMINAL CONVICTION. THE FOUNDERS
DESCRIBED LAWS VITALING THESE PRINCIPLES AS FORMIDABLE INSTRUMENTS OF THEORY AS
A BULL WORK IN FAVOR OF THE PERM SECURITY. ONE OF THE SOCIETY'S MOST CHER RISHD
AND FUNDAMENTAL RIGHTS IS THE RIGHT TO MARRIAGE. ANOTHER IS THE PRIVILEGE AGAINST
SELF-INCRIMINATION. TO EFFECT INFECTION CHEW ATE BOTH OF THESE RIGHTS,
THE MARITAL PRIVILEGE WHICH SEEKS TO PREFERABLE AND FORTIFY THE STRENGTH OF THE
MARITAL UNION AND KEEP PRIVATE THOSE CONVERSATIONS SHARED ONLY BETWEEN
SPOUSES ALLOWING THE STATE TO TAKE AWAY THIS PRIVILEGE RETROACTIVELY AFTER A PERSON
HAS RELIED ON IT IN ORDER TO USE PREVIOUS PROTECTED COMMUNICATIONS TO AT THE
PRIVATE THAT PERSON OF THEIR LIBERTY IS THE VERY KIND OF GOVERNMENTAL ABUSE PROHIBITED
BY THE EX POST FACTO CLAUSE. THAT IS PRECISELY WHAT OCCURRED HERE. AFTER
LEARNING THAT SHE HAD BECOME A TARGET OF AN INTERNAL AFFAIRS INVESTIGATION, MS.
BAILEY CONFIDEED IN HER HUSBAND, SHE AND HER HUSBAND EXCHANGED LOVING AND
SUPPORTIVE MESSAGES IN WHICH SHE EXPRESSED DISAPPOINTMENT IN HERSELF AND HER DECISION
TO CHOOSE THE LOVE SHE HAD FOR HER HUSBAND OVERALL ELSE TO HER OWN DETRIMENT.
THESE MESSAGES WERE PRIVILEGED AT THE TIME THEY WERE MADE. THE TRIAL COURT APPLIED
AN EXCEPTION TO THE MARITAL COMMUNICATIONS PRIVILEGE TO STRIP THE MESSAGES
OF THIS PROTECTION. THIS DOES NOT APPLY IN EFFECT AT THE TIME OF TRIAL. INSTEAD
APPLICATION OF THE NEW LAW RETROACTIVELY STRIPPED MS. BAILEY OF A SUBSTANTIVE
PROTECTION IN ORDER TO CONVICT OF A CRIMINAL OFFENSE. DOING SO VIOLATES THE EX
POST FACTO CLAUSE. TODAY I FOCUS ON THREE POINTS. THE FIRST IS THAT THE
MARITAL COMMUNICATIONS PRIVILEGE IS NO ORDINARY RULE OF PROCEDURE. IT IS INSTEAD
A SUBSTANTIVE PROTECTION THAT EFFECTUATES FUNDAMENTAL RIGHTS. AS INTERPRETED
BY BOTH THIS COURT AND THE UNITED STATES SUPREME COURT. AND THIRD, IS THAT EVEN
IF IT WAS PROPER TO APPLY THE CHANGE TO THE LAW IN THIS CASE MS. BAIL'S
COMMUNICATIONS WITH HER HUSBAND DO NOT FOLLOW THE EXCEPTION TO THE PRIVILEGE.
TURNING TO THE MARITAL COMMUNICATIONS PRIVILEGE, THIS PRIVILEGE DATES BACK
MORE THAN 400 YEARS AGO AND IS GROUNDED IN BOTH THE PRIVILEGE AGAINST SELF-INCRIMINATION
AND THE FUNDAMENTAL RIGHT OF MARRIAGE. THE PURPOSE OF THE PRIVILEGE IS
TO FOSTER UNPROHIBITED COMMUNICATIONS AND THE PRIVILEGE HAS BEEN DESCRIBED BY THE
UNITED STATES SUPREME COURT AS QUOTE ESSENTIAL TO PRESERVES OF THE MARITAL
RELATIONSHIP AND THIS MARITAL RELATIONSHIP MOST RECENTLY BY THE UNITED STATES SUPREME
COURT HAS BEEN SDE CLARD A FUNDAMENTAL RIGHT. IT ALSO CREATES A ZONE OF
PRIVACY. THIS MARITAL ZONE OF PRIVACY IS ALSO RECOGNIZED A AS CONSTITUTIONAL RIGHT.
FINALLY THE PRIVILEGE IS GROUNDED IN THE IDEA THAT SPOUSES ARE ONE UNIT
AND THUS ARE ENTITLED TO BE FREQUENT GOVERNMENT INTRUSION INTO COMMUNICATIONS OF
THAT UNIT WHICH IS EFFECTUATES THE PRIVILEGE AGAINST SELF-INCRIMINATION.
THE PRIVILEGE IS AS EVEN THEY'RE CODIFIED IN OUR RULES OF EVIDENCE ARE DISTINCT
FROM THE OTHER RULES OF EVIDENCE. RULES OF PROCEDURE, THEIR PURPOSE IS,
CONCERNS THE RELIABILITY AND THE RELEVANCE OF EVIDENCE ADMITTED IN THE COURTROOM.
PRIVILEGES, ON THE OTHER HAND, DEALING WITH OUTSIDE OF THE COURTROOM AND
EFFECTUATING THE FUNDAMENTAL RIGHTS I'VE ALREADY DISCUSSED. IN ADDITION, THE OTHER RULES
OF PROCEDURE AND THE RULES OF EVIDENCE APPLY, APPLY IN THE COURTROOM AS
I JUST SAID, HOWEVER PRIVILEGES APPLY IN MANY OTHER CIRCUMSTANCES OUTSIDE OF THE
COURTROOM. OR EVEN WHEN THE RULES OF EVIDENCE DON'T APPLY SO, FOR EXAMPLE, AT
SUPPRESSION HEARINGS, ALTHOUGH THE RULES OF EVIDENCE DON'T APPLY, THE PRIVILEGES
DO. THE PRIVILEGES STILL HOLD THERE. THEY ALSO APPLY IN THE AREA OF PRETRIAL
DISCOVERY. IN ADDITION THEY APPLY CONCERNING OTHER BRACHSZ OF GOVERNMENT
NOT JUST THE JUDICIARY. THE HISTORY OF THE RULES OF EVIDENCE INDICATE THAT THE
PRIVILEGES WERE INCLUDED ONLY AS A MATTER OF CONVENIENCE AND NOT BECAUSE
THEY WERE REGARDED AS SIMILAR IN APPLYING TO THE OTHER RULES OF PROCEDURE. AND
I THINK IT'S NORTH WORTHY THAT THE FIRST PRIVILEGE IN OUR RULES OF EVIDENCE IN
THE SAME SECTION AS THE MARITAL PROVISION IS A PROVISION AGAINST
SELF-INCRIMINATION WHICH I THINK WE WOULD ALL AGREE IS NOT AN ORDINARY RULE OF
PROCEDURE. ANOTHER SOURCE OF LOOKING TO HOW IMPORTANT OR HOW
SUBSTANTIVE PRIVILEGES ARE IS THE ERIE DOCTRINE. IN FEDERAL COURT WHEN COURTS ARE
SITTING IN DIVERSITY COURTS APPLY THE SUBSTANTIVE RULES OF THE STATE AND THE
RULES OF PROCEDURE OF THE FEDERAL COURTS AND THE FEDERAL COURTS HAVE HELD THAT PRIVILEGES
ARE CONSIDERED SUBSTANTIVE RULES AND SO THEY MY THE STATE SUBSTANTIVE RULES.
FINALLY, IN LEWIS V HARRIS THIS COURT'S GAY MARRIAGE CASE AND
IN THE UNITED STATES GAY MARRIAGE CASE BOTH OF THESE CASE CITED TO THE MARITAL
PRIVILEGE AS ONE OF THE BENEFITS OF MARRIAGE. SO IN SUM, THE MARITAL
COMMUNICATIONS PRIVILEGE IS A SUBSTANTIVE PROTECTION INCLUDING SEVERAL FUNDAMENTAL
RIGHTS. CHIEF JUSTICE RABNER: MS. JARIT, YOU DPAN YOUR
PRESENTATION BY SAYING IT WAS REASONABLE TO RELY ON THE PRIVILEGE AT THE TIME THE
CRITICAL COMMUNICATION, I THINK IT WAS IN SEPTEMBER OF 2014 TOOK PLACE IN THIS
CASE. FACTS ARE A LITTLE UNUSUAL HERE IN THAT THAT HAPPENED TWO MONTHS AFTER THE
SUPREME COURT ISSUED AN OPINION THAT CALLED FOR A CHANGE IN THE PRIVILEGE
ITSELF THAT PROPOSED THAT CRIME-FRAUD EXCEPTION PRIVILEGE. HOW REASONABLE WAS IT
FOR SOMEONE TO RELY ON THAT ASPECT OF THE PRIVILEGE IN LIGHT OF WHAT HAD
JUST TAKEN PLACE? ELIZABETH C. JARIT: SO I THINK FIRST OF ALL,
AS I'VE SAID THE PRIVILEGE DATES BACK FOR MORE THAN 400 YEARS.
CHIEF JUSTICE RABNER: I WANT TO START IN JULY OF 2014 IF THAT'S ALL RIGHT WITH
YOU. ELIZABETH C. JARIT: IN JULY OF 2014 TERRY HAD RECENTLY
BEEN DECIDED THE COURT SAID WE SHOULD ADOPT THIS PRIVILEGE BUT IT HADN'T YET BEEN
ADOPTED. SO I THINK IT WAS REASONABLE FOR ANYONE READ TAKING CASE LAW TO
REALLY THAT THIS COURT ON ITS OWN FELT LIKE IT COULD NOT ACT ALONE UNTIL THE OTHER
BRANCH OF GOVERNMENT ACTED IT COULD NOT ENACT THAT PRIVILEGE.
CHIEF JUSTICE RABNER: CAN I ASK IF A CLIENT HAD COME IN TO A REASONABLE
COLLEAGUE'S OFFICE IN YOUR OFFICE AND SAID IS IT SAFE FOR ME TO RELY ON THE
PRIVILEGE IN SEPTEMBER OF 2014 WOULD A REASONABLE ATTORNEY LOOKING AT WHAT HAD
JUST HAPPENED SAID, SURE, YOU'RE PROTECTED, DON'T WORRY ABOUT IT?
ELIZABETH C. JARIT: I THINK THAT, I THINK, IT DEPENDS ON HOW RISK DIVERSE
ATTORNEY WOULD SAY IT'S AN OPEN QUESTION. WE DON'T HAVE CASE LAW ON THIS POINT
YET. I THINK THE COURT WILL RULE YOU WILL BE FINE, HOWEVER, LET'S BE SUPER
SAFE ABOUT IT AND NOT. AND I THINK THAT'S MAYBE HOW I WOULD ADVISE MY CLIENT.
CHIEF JUSTICE RABNER: I WANT TO TALK ABOUT THAT HYPOTHETICAL
REASONABLE ATTORNEY. HOW WOULD A REASONABLE ATTORNEY HAVE RESPONDED TO THE
QUESTION IN YOUR JUDGMENT. ELIZABETH C. JARIT: I THINK A REASONABLE
ATTORNEY WOULD SAY IT SEEMS LIKE THE COURT THINKS THAT THERE SHOULD BE AN
EXCEPTION TO THIS RULE AND IT HAS DIRECTED THE LEGISLATURE TO ACT AND THE GOVERNOR
TO SIGN THE RULE AND IT SEEMS LIKE IN THE FUTURE ONCE THIS EXCEPTION COMES
INTO BEING THEN COMMUNICATIONS ARE NOT GOING TO BE PRIVILEGED ANYMORE.
CHIEF JUSTICE RABNER: SO YOU'RE TALKING ABOUT REASONABLE RELIANCE IN THE
MOMENT AND THAT'S WHY I'M ASKING YOU WHAT REASONABLE GUIDANCE IN THAT INTERIM
PERIOD WOULD BE AND I'M NOT QUITE SURE WE GOT TO THE END. DOES THE REASONABLE
ATTORNEY IN YOUR JUDGMENT SAY YOU GO AHEAD AND HAVE THAT CONVERSATION, YOU'VE GOT
NOTHING TO WORRY ABOUT, YOU WILL BE PROTECTED. I'D SAY THAT BASED ON MY
REASONABLE ANALYSIS OF WHAT'S GOING ON TODAY. ELIZABETH C.
JARIT: I WOULD SAY, WELL, FIRST OF ALL, I THINK A REASONABLE ATTORNEY WOULD
ALWAYS SAY, YOU KNOW, DON'T HAVE ANY COMMUNICATIONS OR WRITE ANYTHING DOWN
ABOUT CRIMES OR FRAUD YOU MAY HAVE BEEN COMMITTING. I THINK THAT'S THE FIRST THING
A REASONABLE ATTORNEY WOULD SAY. BUT I DO REALLY THINK THAT IN TERRY, I
MEAN TERRY DIDN'T APPLY TO THE CRIME-FRAUD EXCEPTION TO MR. TERRY BECAUSE IT COULDN'T.
SO THE FACT THAT IT COULDN'T DO THAT I THINK A REASONABLE ATTORNEY READING
THAT OPINION WOULD SAY UNTIL THE LEGISLATURE ACTS IT'S NOT AN EXCEPTION.
JUSTICE ALBIN: UNTIL THE LEGISLATURE ACTS IT'S NOT A LAW. WE
WROTE STATE VS. BIRD AND RECOMMENDED THE FORFEITURE BY WRONGDOING. WE SENT IT
TO THE LEGISLATURE AND THE LEGISLATURE DIDN'T DO ANYTHING.
ELIZABETH C. JARIT: THAT'S RIGHT. JUSTICE ALBIN: DIDN'T DO ANYTHING
AT ALL. AND THEN WE HAD TO GO BECAUSE THEY'RE IN TWO, THERE ARE TWO ROUTES
BY WHICH YOU CAN ENACT A RULES OF EVIDENCE. SO AN ENTIRE YEAR WENT BY AND WE HAD
TO TAKE ANOTHER ROUTE. SO THERE IS THIS AGREEMENT BETWEEN THE LEGISLATURE
AND THE SUPREME COURT UNLESS BOTH ACT IN SOME SORT OF FORM OF UNISON NO EVIDENCE
WILL GO INTO EFFECT AM I CORRECT? ELIZABETH C. JARIT: I AGREE
COMPLETELY AND I THINK THAT THIS COURT DETERMINING THAT IT COULDN'T ACT
ALONE AND IT NEEDED THE LEGISLATURE TO ACT UNTIL THAT HAPPENED IT COULDN'T, YOU KNOW,
BECOME A LAW. THIS IS A LAW THAT REQUIRED PASSAGE BY THE LEGISLATURE AND
BY THE GOVERNOR. AS YOU WERE SAYING FOR THE FORFEITURE OF STATUTE, IT COULD HAVE BEEN
THE SAME PATH THERE AND IF THERE WAS AN INDICATION THAT THE LEGISLATURE
DIDN'T WANT THIS TO PASS THEN IT WOULD POTENTIALLY NEVER BECOME, WELL OR IT WOULD
HAVE TO BE A JUDICIAL CONFERENCE. JUSTICE ALBIN: I HAVE ANOTHER
QUESTION FOR YOU. DO YOU DOUBT THAT THE LEGISLATURE COULD ACTUALLY REMOVE
THE SPOUSE PRIVILEGE? THEY COULD ABOLISH IT. IF THEY ABOLISHED IT, YOUR POSITION
WOULD BE THEY CAN'T RETROACTIVELY EMPLOY IT. ELIZABETH C. JARIT:
THAT'S CORRECT. THAT'S ENTIRELY CORRECT. THE PRIVILEGES ARE A CREATION OF
OF THE FIRST COMMON LAW. THEN THEY WERE CODIFIED. SO THE LEGISLATURE AS LONG
AS IT DOESN'T VIOLATE A FUNDAMENTAL RIGHT, I GUESS THAT WOULD BE ANOTHER CASE.
BUT IN TERMS OF EX POST FACTO IT WOULDN'T BE A VIOLATION IF THEY ABOLISHED
IT FOR FUTURE CASES OR CONDUCT. I WANT TO GET INTO THE EX POST FACTO
A LITTLE BIT AND TALK ABOUT HOW THE DEFINITION OF THE FOUR CATEGORIES WE
ARE TALKING ABOUT TODAY. SO THE FOURTH CATEGORY STATES THAT EVERY LAW THAT ALTERS
THE REAL RULES OF EVIDENCE AND RECEIVES LESS OR DIFFERENT TESTIMONY THAN
THE LAW REQUIRE AT THE TIME OF THE COMMISSION OF THE OFFENSE IN ORDER TO CONVICT
THE OFFENDER IS A VIOLATE OF THE EX POST FACTO CLAUSE AND SO THAT LAW OR
THAT, WHICH SAYS EVERYONE ALTER THE LEGAL RULE OF EVIDENCE MUST HAVE SOME KIND OF
LIMITING PRINCIPLE TO IT, OTHERWISE EVERY RULE OF PROCEDURE WOULD VIOLATE
THAT CATEGORY. BOTH THIS COURT AND THE UNITED STATES SUPREME COURT HELD THAT THAT
LIMITING PRINCIPLE IS WHETHER OR NOT IT RELATES TO THE SIGNIFICANCE OF THE
PROTECTION CHANGED BY THE RULE. I'M SO SORRY, I HOPE IT'S NOT THE COURT. OKAY.
JUSTICE PATTERSON: IT'S NOT US, MS. INJURY RIGHT.
CHIEF JUSTICE RABNER: NOT TO WORRY. GO AHEAD WITH YOUR ARGUMENT WERE YOU'RE
READY. UH-OH. MS. JARIT APPEARS FROZEN TO ME. THANK YOU, TOM.
THE SPEAKER: HOPEFULLY SHE DIDN'T UNPLUG THE WRONG DEVICE, CHIEF, WE'LL SEE WHAT'S
GOING ON. CHIEF JUSTICE RABNER: CAN YOU HEAR US?
ELIZABETH C. JARIT: I'M SO SORRY. CHIEF JUSTICE RABNER: CAN I GIVE
YOU AN INSTRUCTION FROM THE COURT? ELIZABETH C. JARIT: PLEASE.
CHIEF JUSTICE RABNER: TAKE A DEEP BREATH, FORGET ABOUT THIS,
MOVE ON WITH YOUR ARGUMENT. ELIZABETH C. JARIT: ALL RIGHT. THANK YOU.
CHIEF JUSTICE RABNER: TAKE A DEEP BREATH. IT'S OKAY.
ELIZABETH C. JARIT: OKAY. THANK YOU VERY MUCH, CHIEF. THE
SPEAKER: ONE SECOND. LET ME START THE LIVE STREAM BACK UP.
CHIEF JUSTICE RABNER: PLEASE GO AHEAD. ELIZABETH C. JARIT: THANK YOU,
CHIEF. AS WITH THIS COURT AND THE UNITED STATES SUPREME COURT
UPHELD THAT THIS CATEGORY DEALS WITH SUBSTANTIVE CHANGES TO THE RULE AND IT
RELATES TO FUNDAMENTAL FAIRNESS INTERESTS AND THE GOVERNMENT. THE IDEA THAT
THE GOVERNMENT CANNOT REFUSE AFTER THE FACT TO PLAY BY ITS OWN RULES AND CHANGE
THEM IN ORDER TO SECURE A CRIMINAL 56. I WANT TO TALK ABOUT MY ADVERSARY
WHO WRITES ON IT QUITE A BIT IN HIS BRIEF AND IN COLLINS THE COURT SPECIFICALLY
OVERTURNED TO TWO PRIOR CASES THAT THE SUPREME COURT HAD FOUND THAT THERE WAS
AN EX POST FACTO VIOLATION BUT THEY DID SO BASED ON LAWS THAT DID NOT FALL INTO
ONE OF THE FOUR CATEGORIES. ONE HAD TO DO WITH CHANGING THE NUMBER OF JURORS.
ONE HAD TO DO WITH THE SIGNIFICANCE, I'M SORRY AS TO WHETHER OR NOT OR NOT.
AND IN COLLINS THE COURT HELD THAT THERE'S NO EXTRA FIFTH CATEGORY JUST BASED ON
THE FUNDAMENTAL FAIRNESS IT HAS TO FALL WITHIN ONE OF THOSE FOUR. IT ALSO
CITED TO A CASE THAT'S A 1925-CASE SAYING THAT BEES SELL IS THE CORRECT INTERPRETATION
OF THE CATEGORIES. AND IN BEES SELL THE SUPREME COURT STATED THAT THE
DISTINCTION BETWEEN WHETHER OR NOT A LAW VIOLATES THAT FOURTH CATEGORY CANNOT BE
EMBRACED WITH A FORMULA OR STATED IN A GENERAL PROPOSITION. THE DISTINCTION
IS ONE OF DEGREE. AND THE CONSTITUTION WAS INTEND TO DO SECURE SUBSTANTIAL PERSONAL
RIGHTS AGAINST AND NOT TO LIMIT THE LEGISLATIVE CONTROL IN PROCEDURES
WHICH DO NOT AFFECT MARRIAGES IN SUBSTANCE. SO COLLINS ITSELF STILL ADD HEESHD
TO THE LIMITING PRINCIPLE THAT I TALKED ABOUT EARLIER IN TERMS OF WHETHER OR NOT
A LAW VIOLATED THE FOURTH CATEGORY LOOKING AT HOW SUBSTANTIVE IT IS. AND
HOW SUBSTANTIAL IT WAS. THIS COURT IN STATE V. MOORE DATING BACK TO
THE 18 HUNDREDS. ALSO USED SIMILAR LANGUAGE ABOUT SUBSTANTIAL PROTECTION
IN TERMS OF WHETHER OR NOT THE LAW WOULD VIOLATE THAT FOURTH CATEGORY. AND THIS COURT
IN STATE HAVE MOHAMMED MORE RECENTLY SALS CITING COLLINS STATED THAT THERE WAS
NO VIOLATION BECAUSE THE LAW DID NOT ALTER ANY SUBSTANTIVE RIGHTS OF THE
DEFENDANT. JUSTICE PATTERSON: MS. JARIT WHAT ABOUT THE LINE
IN CARMEL WHICH STATED THAT REFERRING TO RULES THAT EITHER ALLOW THE ADMISSION
OF EVIDENCE OR DON'T AND DON'T ALTER THE THRESHOLD FOR WHAT CONSTITUTES A LEGAL
SUFFICIENCY IN TERMS OF THE STATE, MEETING ITS BURDEN OF PROOF. SUCH RULES BY
SIMPLY PERMITTING EVIDENCE TO BE ADMITTED AT TRIAL DO NOT AT ALL SUBVERT THE
PRESUMPTION OF INNOCENCE BECAUSE THEY DO NOT CONCERN WHETHER THE ADMISSIBLE EVIDENCE
IS SUFFICIENT TO OVERCOME THE PRESUMPTION. PRESUMABLY THAT RULES
ENCOMPASSES A MYRIAD OF EVIDENTIARY CHANGES OBVIOUSLY JUST TO USE WHAT THIS
COURT DOES PERIODICALLY IS MAKE SIGNIFICANT AND SOME SIGNIFICANT, PERHAPS SOME
MORE MINISTERIAL CHANGES TO THE RULES OF EVIDENCE EVERY FEW YEARS. SO WHY IS THIS
CASE NOT IN THAT LATTER CATEGORY THAT THE COURT IN THE SUPREME COURT CITED?
SNOO YES. SO IN CARMEL THE COURT DID FIND AN EX POST FACTO VIOLATION BECAUSE THE
RULE DID CHANGE THE QUANTUM OF EVIDENCE NECESSARY TO SUPPORT A CONVICTION.
AND THAT WAS EXACTLY THE SAME THING THAT, OR IT WAS EXACTLY LIKE LORD FENWICH'S
CASE WHICH WENT INTO QUITE DETAIL AND WAS ONE OF THE REASONS THAT THE CLAUSE
WAS ADOPTED. HOWEVER, THAT IS JUST ONE EXAMPLE OF HOW THE LAW, OF HOW AN EX POST
FACTO LAW COULD VIOLATE THE CONSTITUTION. JUSTICE PATTERSON:
I WOULD BE WITH YOU MS. JARIT ON THAT POINT IF THE COURT DID NOT MAKE THE
DISTINCTION THAT IT MADE IN THAT CASE. AND IF THAT IS THE DISTINCTION THAT HOLDS
WHY ARE WE NOT HERE? AS I UNDERSTAND THIS CASE THERE IS NOTHING IN THE
CRIME-FRAUD EXCEPTION TO THE MARITAL PRIVILEGE THAT ALTERS THE BURDEN OF PROOF ON
THE STATE. THE STATE MAINTAINS ITS BURDEN OF PROOF ON THE ELEMENTS OF THE
OFFENSE BEYOND A REASONABLE DOUBT. BUT WE HAVE HERE IT CHANGED TO AN EVIDENTIARY
RULE FOR SOME CATEGORIES OF EVIDENCE MAKES EVIDENCE ADMISSIBLE WHERE IT WOULD NOT
BE BEFORE. SO WHY IS THAT NOT WITHIN THAT SECOND CATEGORY THAT WAS CITED
BY THE SUPREME COURT? ELIZABETH C. JARIT: ZOCOR MEDICAL STILL
STUCK TO THE CATEGORIES, IT CITED TO CALLED DETER IT SAID IT'S THE RIGHT WAY TO
INTERRUPT THIS. JUSTICE CHASE WAS CORRECT. HIS INTERPRETATION OF THE CLAUSE IS
WHAT KWESHD ADHERE TO. AND SO WHEN YOU LOOK TO THE CASE AND JUSTICE CHASE'S
DESCRIPTIONS OF HIS CATEGORIES I THINK THAT'S REALLY INSTRUCTIVE. BECAUSE {CASE
CITED} EXPLAINED THAT ONE WAY TO VIOLATE THE EX POST FACTO CLAUSE AND THIS IS
A QUOTE FROM {CASE CITED} WHICH IS ALSO FROM A FOOTNOTE IN CARMEL. ONE WAY TO
VIOLATE THE CLAW CLAUSE IS ADMITTING ONE WITNESS WHEN THE EXISTING LAW REQUIRED
TO. THAT'S CHANGING THE QUANTUM OF EVIDENCE AS YOU NOTED. THE NEXT LINE {CASE
CITED} SAYS ANOTHER WAS QUOTE RECEIVING EVIDENCE WITHOUT OATH OR THE OATH
OF THE WIFE AGAINST THE HUSBAND OR OTHER TESTIMONY WHICH THE COURTS OF JUSTICE
WOULD NOT ADMIT. SO THAT'S ANOTHER WAY THAT JUSTICE CHASE STATED IN KAL
DETER APPROVED IN CARMEL THAT IT COULD VIOLATE THE EX POST FACTO CLAUSE. IT'S
MORE THAN JUST SIMPLY CHANGING THE QUANTUM OF EVIDENCE. JUSTICE
PATTERSON: THAT WAS AT THE TIME WHEN THE MARITAL PRIVILEGE WAS STRICTLY ADHERED
TO BY THE SUPREME COURT. BUT IT'S STILL, YOU STILL HAVE A LATER CASE HERE.
FROM A COUPLE OF DECADES AGO WHERE THE COURT SEEMS TO BE DRAWING A DISTINCTION
BETWEEN RULES THAT ORDER THE THRESHOLD OF EVIDENCE, THE QUANTUM OF EVIDENCE
REQUIRED AND EVIDENTIARY RULES, OBVIOUSLY THE FEDS DO THE SAME AS PERHAPS WE DO
HERE WITH CHANGING EVIDENTIARY RULES IN SMALL OR LARGE WAYS. ODD DISC CANCEL.
SO I GUESS THAT BUT FOR CARMEL IF CALLED DETER WERE THE LAST WORD THAT THAT
DESCRIPTION IS HELPFUL TO YOU. BUT I THINK THE SUPREME COURT HAS SPOKEN
AGAIN IN A CLARIFYING WAY AND I'M JUST TRYING TO SEE IF, DO YOU HAVE AN ARGUMENT
IF CARMEL'S DESCRIPTION, IF CARMEL'S DESCRIPTION, SNOOSHGS THERE WERE TWO
CASES AFTER CARMEL I'D LIKE TO DRAW YOUR ATTENTION TO. ONE IS {CASE CITED}, THAT
WAS IT 2003. AND THE OTHER IS PEW V UNITED STATES. I WANT IT TALK ABOUT
THOSE A LITTLE BIT. IN THE CALIFORNIA CASE THE COURT HELD THAT IT CHANGED THE STATUTE OF
LIMITATIONS AFTER IT HAD WRUN AS AN EX POST FACTO VIOLATION. AND IT FOUND
SO UNDER THE SECOND CATEGORY. BUT IT ALSO HELD THAT IT COULD ALSO BE A VIOLATION
OF COUNTER'S FOURTH CATEGORY. AND THAT DOESN'T HAVE TO DO WITH QUANTUM OF
EVIDENCE. IT HAS TO DO WITH FUNDAMENTAL FAIRNESS IN ISSUES. IT HAS TO DO WITH
RELIANCE ISSUES AND IN ITS OPINION, THE UNITED STATES SUPREME COURT POST
CARMEL, COST COLLINS CITED TO NOT ONLY CITED TO BUT EXPLAINED WITH APPROVAL OUR
COURT'S DECISION IN STATE V. MOORE, THE VERY OLD CASE FROM THE 18 HUNDREDS,
CITED WITH THAT CASE AND OUR COURTS DISCUSSION ABOUT THE FUNDAMENTAL FAIRNESS
CONCERNS ABOUT THE SUBSTANTIVE PROTECTIONS OF THE FOURTH CATEGORY. IT SIDE THAT
WITH APPROVAL AS AN AGE GROUP FOR THAT PART OF THE FOURTH CATEGORY IN THE
EX POST FACTO CLAUSE AND THEN AGAIN LATER IN PEW THE COURT AGAIN IN THAT CASE HELD
THAT ADMINISTRATIVE CHANGES TO THE FEDERAL SENTENCING GUIDELINES OR AN EX POST
FACTO CLAUSE AND IT VIOLATED THE CATEGORIES. IN THAT CASE AGAIN THE SUPREME
COURT STATED OUR HOLDING TODAY IS CONSISTENT WITH BASIC PRINCIPLE OF
FAIRNESS THAT ANIMATE THE EX POST FACTO CLAUSE,. JUSTICE
PATTERSON: I THINK FOR REASON THAT IS WE PROBABLY SHOULD AVOID OR AT LEAST I WILL
AVOID IN THE INTEREST OF TIME TALKING ABOUT THOSE TWO CASES HAVE REALLY
RAISED DIFFERENT ISSUES. IS CARMEL THE LAST WORD AS FAR AS YOU KNOW ON THE EVIDENTIARY
ASPECT OF THE FOURTH CATEGORY? ELIZABETH C. JARIT: I DON'T THINK
SO. BECAUSE I THINK {CASE CITED} ALSO TALKS ABOUT THE FOURTH CATEGORY,
THE EVIDENTIARY CATEGORY. JUSTICE PIERRE-LOUIS: BUT THAT'S TALKING
ABOUT THE ABILITY TO CHARGE SOMEONE WITH AN OFFENSE AT ALL REGARDING THE
STATUTE OF LIMITATIONS WHICH I THINK YOU CAN PROBABLY AGREE IS MUCH DIFFERENT THAN
THE ISSUES WE HAVE HERE REGARDING THE ADMISSIBILITY OF EVIDENCE. THAT'S
A VERY SIGNIFICANT DIFFERENCE BETWEEN WHAT WE'RE TALKING ABOUT HERE AND THE STATUTE OF
LIMITATIONS ISSUE THAT WOULD PREVENT THE CHARGING IN THE FIRST INSTANCE.
SO, YOU KNOW, TO PIGGYBACK OFF OF JUSTICE PATTERSON'S COMMENTS I THINK THOSE TWO
CASES ARE SIGNIFICANTLY DIFFERENT AND IT DOES SEEM LIKE THAT LANGUAGE IN
CARMEL IS PROBABLY THE LAST WORD THUS FAR WITH REGARD TO EVIDENTIARY, CHANGES IN THE
EVIDENCE RULES. ELIZABETH C. JARIT: WERE YOU LOOK AT
CARMEL I THINK CARMEL ITSELF DOES NOT DO AWAY WITH THE SUBSTANTIVE PROCEDURAL DISTINCTION
OF THE FOURTH CATEGORY. SO IN FOOTNOTE 23 CARMEL STATES WE DO NOT MEAN
TO SAY THAT EVERY RULE THAT HAS AN EFFECT ON WHETHER A DEFENDANT MAY BE CONVICTED
INDICATES THE CLAUSE. ORDINARY RULES OF EVIDENCE, FOR EXAMPLE, TO NOT VIOLATE
THE CLAUSE. AND IT GOES ON TO TALK ABOUT WHAT AN ORDINARY RULES OF EVIDENCE MEANS.
IT SAYS TO THE EXTENT WHEN WE CONSIDER CHANGES YOU KNOW UNFAIR OR UNJUST,
THOSE DON'T INDICATE THE KIND OF UNFAIRNESS IMPLICATED BY CHANGE IN THE QUANTUM OF
EVIDENCE OR THOSE AFFECTING AND THEN IT SITES JUSTICE'S CATEGORY AS AN EXAMPLE
OF ADMITTING THE WIFE AND THE HUSBAND WHICH CARMEL IN TWAU NOT JUST IN KAL DETER
BUT CARMEL IN TWAU THOSE RECOLLECTIONS THE VIOLATION OF THE CLAUSE.
JUSTICE ALBIN: ARE WE IN A DIFFERENT SPECIES OF RULES? THIS IS DIFFERENT FROM
THE RULE THE WAY YOU STARTED OUT. PRIVILEGES ARE SUBSTANTIVE RIGHTS.
WE'VE RECOGNIZED THAT SUBSTANTIVE RIGHTS. IT'S NOT A QUESTION OF WHETHER OR NOT
THIS EVIDENCE CAN COME IN HERE OR THIS EVIDENCE CAN COME IN THERE. THESE ARE
PRIVACY RIGHTS, AUTONOMY RIGHTS, RIGHTS OF INT MASSEY. YOU MENTIONED HOW I CAN
VS. HARRIS, THIS COURT TICKED OFF TEN RIGHTS THAT WERE NOT AFFORDED TO
COMMITTED SAME SEX COUPLES THAT WERE GIVEN TO MARRIED COUNSEL AND ONE OF THOSE
RIGHTS WAS, AND THE TESTIMONIAL PRIVILEGE GIVEN TO A SPOUSE BEING ACCUSED IN
A CRIMINAL ASK. SO THIS ISN'T THE HEARSAY RULE. THIS IS WHETHER THIS COMES IN.
THIS IS WHETHER OR NOT YOU CAN RETROACTIVELY ALTER A SUBSTANTIVE RIGHT AND
YOU CAN ALTER IT ACTUALLY ELIMINATE IS RETROACTIVELY. GO AHEAD.
ELIZABETH C. JARIT: YES, I COMPLETELY AGREE WITH HOW YOUR HONOR IS FRAMING
THE CASE. I DO WANT TO DISTINGUISH ROSE A BIT WHICH DID HOLD THAT A CHANGE
TO THE HEARSAY RULE COULD BE RETROACTIVELY APPLIED. HEARSAY IS A QUINN TELLS ESSENTIAL
RULE OF PROCEDURE AND SO THAT IT DOESN'T AFFECT A SUBSTANTIVE RIGHT THAT
THIS COURT HAS RECOGNIZED OR PRETTY MUCH EVERY COURT HAS RECOGNIZED IN TERMS OF
WHAT PRIVILEGES MEAN TO PEOPLE. ONE THING I THINK IS REALLY, AN INTERESTING
DIFFERENCE BETWEEN THE FORFEITURE EXCEPTION AND THE EXCEPTION HERE IS THAT BOTH
WERE DONE THROUGH THE RULES OF EVIDENCE HOWEVER AS JUSTICE ALBIN ALREADY
TALKED ABOUT THE FORFEITURE BY WRONGDOING WAS ENACTED AS PART OF A JUDICIAL
CONFERENCE AND THAT INACTION BY THE LEGISLATURE AND GOVERNOR. IT WAS REALLY DONE
BY ONLY DONE, THE EXCEPTION THAT WE'RE TALKING ABOUT TODAY THIS COURT HAD
A PROPOSED A RULE AND THEN THAT WAS LEGISLATIVE ACTION IN THE FORM OF A STATUTE
AND THEN THE GOVERNOR SIGNED IT. SO THAT NEED TO ENACT AN EXCEPTION TO
ALL THREE BRANCHES OF GOVERNMENT DOES SIGNIFY A MUCH MORE SUBSTANTIVE CHANGE TO
OUR RIGHT THAN A CHANGE TO THE HEARSAY RULE, FOR EXAMPLE. CHIEF
JUSTICE RABNER: MS. JARIT WE'RE ABOUT THE END OF YOUR TIME. IS THERE ANYTHING
YOU WANT IT RAISE WITH US AND TO DO SO CONCISELY. ELIZABETH C.
JARIT: YES. I'LL BE VERY QUICK. EVEN IF IT WAS AN EX POST FACTO VIOLATION THE
COURT SHOULD THEN CONDUCT A SIMPLE STATUTORY INTERPRETATION QUESTION TO
DETERMINE WHETHER OR NOT THE LEGISLATURE PREFERRED THAT THIS RULE SHOULD BE APPLIED
RETROACTIVELY OR INTENDED IT TO BE APPLIED RETROACTIVELY OR PERSPECTIVELY.
THE AFFECTED DATE OF THE STATUTE INDICATES IT SHOULD BE APPLIED PERSPECTIVE ONLY.
BUT EVEN MORE SO THE STATUTE WAS SIGNED INTO LAW IN NOVEMBER. THAT DID CHANGE
THE STATUTE PART OF THIS BUT THEN THIS COURT ABOUT A COUPLE WEEKS LATER CHANGED
THE RULES SO THAT IT WOULD BE IN A RULE BOOK CORRECTLY IN DECEMBER AND IN THE
NOTES FOR THAT CHANGE THIS COURT STATED THAT IT WOULD BE RETROACTIVE ONLY TO THE
TIME THAT IT CHANGED IN NOVEMBER. SO THIS COURT HAS ALSO ALREADY SPOKEN
ON HOW IT FELT, WHAT DATE IT SHOULD BE RETROACTIVE TO ALREADY.
CHIEF JUSTICE RABNER: THE NOTES THAT YOU'RE REFERRING TO ARE WHICH PRECISELY?
ELIZABETH C. JARIT: IF YOU LOOK ON THE JUDICIARY'S WEBSITE
THE RULES OF EVIDENCE LISTED THERE FOLLOWING IT THERE'S A COMMENT AND IT STATES
WHEN THE RULE CHANGE WOULD BE RETROACTIVE TO. SO NOT THE STATUTORY CHANGE,
BUT THE RULE CHANGE. I COULD PROVIDE THOSE TO YOU IF YOU'D LIKE.
CHIEF JUSTICE RABNER: PLEASE GO AHEAD. ELIZABETH C. JARIT: EVEN
IF THIS IS TO BE APPLIED RETROACTIVELY THE COMMUNICATIONS HERE DID NOT FALL
UNDER THE CRIME-FRAUD EXCEPTION TO THE RULE. THIS COURT STATED IN TERRY THE
CRIME-FRAUD EXCEPTION SHOULD NOT ALLOW CONFESSIONS OF A SPOUSE TO ANOTHER SPOUSE
TO BE ADMITTED AT TRIAL. IT SHOULD ONLY ALLOW COMMUNICATIONS THAT JOINTLY
ADVANCE A CRIME OR A FRAUD. AND HERE THESE COMMUNICATIONS DID NONE OF THOSE
THINGS. THERE WAS NOTHING ADVANCING THE DRUG CONSPIRACY. IT COULD NOT BE
A FUTURE ONGOING CRIME RELATED TO ANY OF THE ALLEGED POLICE REPORTS WHICH OCCURRED
MONTHS BEFORE. THERE WAS NO CONFIDENTIAL INFORMATION IN THESE TEXT MESSAGES
THEMSELVES. IT COULD NOT RELATE TO THE BRIEFING THAT WOULD OCCUR MONTHS LATER
BECAUSE MS. BAILEY HAD NO IDEA THAT WAS GOING TO HAPPEN. IT'S NOT ENOUGH
THAT BOTH SPOUSES MIGHT BE INVOLVED IN CRIMINAL BEHAVIOR. THERE'S PUBLIC POLICY
INTEREST THAT PROMOTE EVEN CONFESSIONS BETWEEN CRIMINAL SPOUSES. I ALSO WANT
TO EMPHASIZE THAT THE STATE HERE WAS THE PRO POSTPONE IN THE EVENT OF THE
EVIDENCE IN THIS CASE. THEY HAD THE BURDEN TO DEMONSTRATE THAT IT FELL WITH THE
EXCEPTION AND THEY DID NOT DO SO. JUST TOUCHING ON THE ERROR
ANALYSIS IN THIS CASE. THESE TEXT MESSAGES WERE AT THE HEART OF THE
STATE'S CASE. THERE WAS PRETTY MUCH NO DIRECT EVIDENCE IN THE RECORD CONCERNING
THE MENS REA ELEMENT OF THE CRIME SHE WAS CONVICTED OF. IF MS. BAILEY HAD A
PURPOSE TO BENEFIT HERSELF OR OTHERS. THAT WAS REALLY THE QUESTION THAT THE JURY
NEEDED TO DETERMINE AND THE STATE LIED HEAVILY ON THESE TEXT MESSAGES FOR THAT
SPECIFIC PURPOSE. I WENT TO EMPHASIZE THAT WHEN ADMITTING THEM INTO TRIAL
THE STATE HAD HAD ACTED, THAT SHOULDN'T, THAT HAD AN IMPACT ON THE JURY. IT WAS
ALSO THE LAST PIECE OF EVIDENCE THEY ADMITTED INTO TRIAL RIGHT BEFORE THEY
DID SOME STIPULATIONS AND RESTED. THE STATE RELIED ON THIS THEME IN OPENING THAT
MS. BAILEY, BECAUSE THE TEXT MESSAGES THEMSELVES AND THEN IN CLOSING THEY
PLAYED THE TEXT MESSAGES, THEY EC CODE THIS THEME. THEY STATED THAT THESE TEXT
MESSAGES WERE WHAT IMPROVED HER INTENT AND THEY STATE THAT THESE THEEKS
CONTRIBUTE HER OWN TESTIMONY WHERE SHE SAID SHE DID NOT HAVE THIS INTENT. SO FOR
THOSE REASONS UNLESS YOUR HONOR VS. ANY QUESTIONS. . . OKAY. FOR THOSE
REASONS THE MARITAL COMMUNICATIONS PRIVILEGE IS A SUBSTANTIVE RULE THAT PROTECTS
FUNDAMENTAL RIGHTS AND A RETROACTIVE CHANGE IN ORDER TO CONVICT MS. BAILEY O OF
A CRIME VIOLATING THE EX POST FACTO CLAUSE. CHIEF JUSTICE
RABNER: THANK YOU. MS. WISOTSKY: THANK YOU, YOUR HONOR, MAY IT
APPLIES THE COURTER P-THE ACLU OF NEW JERSEY URGES THE COURT TO FIND A
PRESUMPTION THAT THE EX POST FACTO CLAUSES OF BOTH THE FEDERAL AND STATE CONSTITUTIONS
ARE TRIGGERED WHEN TWO CONDITIONS, BOTH OF WHICH ARE PRESENT IN THIS CASE,
ARE BOTH MET. THE FIRST IS WHEN A MOD MIX OF AN EVIDENTIARY RULE IS SO SIGNIFICANT
THAT IT MUST BE ADOPTED IN A MANNER THAT'S STENT WITH THE EVIDENCE ACT AND
SECOND WITHOUT NOTICE OR FAIR WARNING TO THE INDIVIDUAL WILL PLAUSIBLY IMPACT THE
SPEECH OR BEHAVIOR OF THE INDIVIDUAL IMMEDIATELY FOLLOWING A PERCEIVED
OFFENSE WHICH MODIFIES THAT AS SIGNIFICANT. MY VERY ABLE COLLEAGUE HAS OUTLINED
VM ARGUMENTS ABOUT THE HISTORY OF STATUTE AND THE EVIDENTIARY RULES AND THE
CONSTITUTION AL ISSUES IN THIS CASE AND SO FOR THE PURPOSE OF ANALYZING THE SUBS
TANTIVE NATURE OF THE ISSUE, THE ACLU OF NEW JERSEY WOULD LIKE TO BRIEFLY
EMPHASIZE THE CHOICES THAT WERE MADE BY THE NEW JERSEY LEGISLATURE TO CODIFY
PRIVILEGES AND TO STATUTORILY PROTECT COMMUNICATION WITHIN CERTAIN RELATIONSHIPS.
UNLIKE THE FEDERAL GOVERNMENT WHICH LEAVES THE GOVERNANCE OF PRIVILEGE
CLAIMS TO COMMON LAW, NEW JERSEY HAS MADE A CONSCIOUS CHOICE TO SPECIFICALLY CRAFT
AND LESS LATE THOSE EXCEPTIONS, AS A LEGAL SYSTEM WE ASSUME THAT PEOPLE
FOLLOW THE LAW AND WE ASSUME THAT PEOPLE RELY ON THE LAW WHEN THEY'RE MAKING
DECISIONS. IT WAS REASONABLE FOR THIS DEFENDANT, A POLICE OFFICER, OR REALLY
FOR ANY PERSON, TO HAVE RELIED ON THE PROTECTIONS THAT WERE PROVIDED IN THE LAW
WHEN DECIDING WHETHER TO ENGAGE IN SPEECH THAT COULD LATER BE USED AS
INCRIMINATING EVIDENCE. THIS IS PARTICULARLY TRUE BECAUSE AT THE TIME THAT THE
DEFENDANT SENT THE TEXT MESSAGES THEY WERE SPECIFIC AND CODIFIED CRIME FRAUD
EXCEPTIONS TO AT LEAST FIVE OTHER PRIVILEGES IN THE NEW JERSEY RULES OF EVIDENCE.
IT WOULD HAVE BEEN EXCEEDINGLY REASONABLE FOR THIS DEFENDANT TO BELIEVE THAT
THE LEGISLATURE HAD EXPLICITLY OPTED OUT OF ADOPTING A CRIME FRAUD EXCEPTION TO
THE MARITAL COMMUNICATIONS PRIVILEGE BECAUSE AT THE TIME THAT SHE SENT THE
TEXT MESSAGES THE NEW JERSEY LEGISLATURE HAD. IF I MIGHT FOR A MOMENT ADDRESS
CHIEF JUSTICE YOUR QUESTIONS TO MISS JARIT ABOUT THE REASONABLE ATTORNEY
HYPOTHETICAL AND WHY A LAWYER WOULD HAVE COUNSELED THEIR CLIENT JUST TO EXPAND ON
MISS JARIT'S ANSWER I WANT TO HIGHLIGHT THE LANGUAGE THAT THIS COURT USED IN STATE
V. BROWN EXPLAINING THE PURPOSES OF THE EX POST FACT TOE CLAUSES AND QUOTING
GRAMS, THIS COURT QUOTES THAT IT'S TO GUARD AGAINST THE LACK OF FAIR NOTICE, THAT
NOTICE RUNS TO THE INDIVIDUAL, AND TO ECHO JUSTICE ALBIN'S COMMENT WITHOUT
THE ENACTMENT OF THE LAW THAT NOTICE WASN'T PROVIDED YET TO THE DEFENDANT IN THIS
CASE. AND SO ALTHOUGH THIS CASE DOESN'T FALL SQUARELY WITHIN THE AMBIT OF THE
5TH AMENDMENT AND THE STATE LAW RIGHTS AGAINST SELF INCRIMINATION, THERE ARE SIMILAR
PRINCIPLES AT PLAY WHICH RENDERS THIS CHANGE SIGNIFICANT AND SUBSTANTIVE
AND ALSO DIFFERENTIATES IT FROM THE OTHER EX POST FACTO CASES THAT HAVE COME BEFORE
THIS COURT AND THE NEW JERSEY JUDICIARY THAT HAVE INVOLVED RULES OF EVIDENCE
BUT NOT NECESSARILY THE SUBSTANTIVE CHANGE THAT CHANGES WHEN A PERSON'S OWN WORDS
THAT WERE SPOKEN IN THE CONTEXT OF A HISTORICALLY AND A LEGISLATIVELY
PRIVILEGED RELATIONSHIP COULD BE USED AGAINST THEM TO SECURE A CRIMINAL CONVICTION.
SO UNLESS THERE ARE ANY QUESTIONS? CHIEF JUSTICE RABNER:
THANK YOU COUNSEL. MISS BYALIK. MS. BYALIK: THANK YOU,
I WOULD LIKE TO HIGHLIGHT A COUPLE OF POINTS THAT HAVE BEEN MADE THAT ARE
REALLY CRUCIAL TO THIS COURT'S HOLDING AND THE FIRST ONE IS THAT PRIVILEGES ARE
NO ORDINARY RULES OF EVIDENCE AND IT REALLY WAS ERROR FOR THE LOWER COURTS TO
TREAT THEM AS SUCH AND MERELY JUST SLAP A PROCEDURAL LABEL ON THEM. YOU KNOW,
RULES OF EVIDENCE ARE DESIGN TO HELP ENSURE THE ACCURACY AND RELIABILITY AND
TRUSTWORTHINESS OF THE INFORMATION THAT'S COMING OUT AT TRIAL, AND THE PURPOSE
OF PRIVILEGE IS EXACTLY THE OPPOSITE, EVIDENTIARY PRIVILEGE BY THEIR DESIGN CONCEAL
FACTS IN ORDER TO PROTECT CERTAIN INTERESTS AND RELATIONSHIPS THAT A
PUBLIC POLICY DECISION HAS BEEN MADE ARE WORTHY OF THOSE PROTECTIONS. AND THE IMPORTANT
THING IS IT EXTENDS BEYOND THE MARITAL PRIVILEGE AND HAS IMPLICATIONS FOR
ALL OF THE OTHER PRIVILEGES THAT ARE CODIFIED. THE ATTORNEY/CLIENT PRIVILEGE,
THE DOCUMENTATION PRIVILEGE, AND ALL OF THE OTHER PRIVILEGES WHERE THE
RELATIONSHIPS AND THE COMMUNICATIONS ARE IMPORTANT ALMOST SACRED AND THE POLICY
IS TO ENCOURAGE OPEN AND TRUTHFUL COMMUNICATIONS AND TO ENCOURAGE THE
RELATIONSHIP ITSELF. AND A RETROACTIVE APPLICATION OR ELIMINATION OF SUCH A
PRIVILEGE WITHOUT NOTICE, WHAT WOULD THAT DO TO ANY OF THE PRIVILEGES. YOU KNOW,
PRIVILEGES AND OTHER EVIDENCE RULES, THEY MAY SORT OF LIVE TOGETHER IN THE
SEQUENTIAL ORDER IN LAW BOOKS, BUT I BELIEVE IT WAS JUSTICE ALBIN THAT SAID
THEY'RE A DIFFERENT SPECIES, THEY HAVE DIFFERENT ORIGINS, THEY FUNCTION
DIFFERENTLY, AND FOR THAT REASON YOU CAN'T JUST SAY IT'S A MERE RULE OF PROCEDURE
AND IT GOVERNS THE TRIAL AND SHOULD BE TREATED AS SUCH WHICH IS WHAT THE
COURTS HAVE DONE HERE. A GOOD EXAMPLE IS THE ATTORNEY/CLIENT PRIVILEGE, AND THAT'S
THE ONE THAT WE SORT OF ENCOUNTER IN DAY-TO-DAY PRACTICE AND, YOU KNOW, WE
NEED TO THINK ABOUT HOW THAT WOULD BE IMPACTED BY A DECISION HERE. BECAUSE THE
STATEMENTS SUCH AS THE ONES THAT MISS BAILEY MADE TO HER HUSBAND, THOSE ARE
SOMETHING YOU CAN FORESEE A CLIENT COMING INTO YOUR OFFICE AS AN ATTORNEY AND SAYING
TO YOU, THEY'RE BEE MOANING THEIR ACTIONS, THEY ARE EXPRESSING GUILT AND REGRET
FOR THINGS THAT HAVE HAPPENED AND SEEKING ADVICE OF COUNSEL TO HOW TO GET OUT OF
IT, THOSE STATEMENTS ARE ALMOST SOMETHING THAT AN ATTORNEY WOULD HEAR ON A
ROUTINE DAY-TO-DAY BASIS AND TO SAY THAT THEY WERE PROSPECTIVE LEFRPD ONE DAY AND
NOT PRIVILEGED THE NEXT, WHAT WOULD THAT DO TO THE ATTORNEY/CLIENT RELATIONSHIP,
IT WOULD INHIBIT TRUTHFUL CHUN OCCASIONS AND THE FUNCTION OF THE ATTORNEY
TO ASSIST THEIR CLIENT. SO IT'S IMPORTANT THAT THIS COURT NOT LOSE SIGHT OF WE'RE
TALKING MORE THAN JUST A MARITAL PRIVILEGE, A PRIVILEGE ARE OR ARE NOT
SUBSTANTIVE AND TO FIND OUT THAT THEY ARE NOT WOULD BE TO ERADICATE A LOTS OF
PROTECTIONS THAT THE PRIVILEGE AFFORD. THE ACLU BELIEVES THAT THE ACTUAL
EXCEPTION, THE CRIME FRAUD EXCEPTION, SHOULD RECEIVE A NARROWER INTERPRETATION THAN
THE ONES THAT THIS COURT APPLIED HERE. IT'S NOT THAT ANY LANGUAGE RELATING TO
A CRIME OR FRAUD WOULD COME WITHIN THE EXCEPTION, AS I MENTIONED, A LOT
OF TIMES CLIENTS COME INTO THEIR ATTORNEY'S OFFICE STATING VERY SIMILAR THINGS
TO WHAT MISS BAILEY SAID TO HER HUSBAND AND THOSE THINGS WOULD NOT COME
WITHIN THE CRIME FRAUD EXCEPTION BECAUSE AS THAT EXCEPTION HAS BEEN APPLIED AT
LEAST TO THE ATTORNEY/CLIENT PRIVILEGE, IT MER TANS TO ONGOING OR FUTURE
CRIMES, IT DOESN'T ENCOMPASS COMPLETED CRIMES, AND SO TO HOLD THAT THAT COMMUNICATION
COMES WITHIN THE CRIME FRAUD EXCEPTION IS TO ESSENTIALLY HOLD THAT THE
ATTORNEY/CLIENT PRIVILEGE IS MORE SACRED THAN THE SPOUSAL PRIVILEGE BECAUSE UNDER
SIMILAR CIRCUMSTANCES THOSE COMMUNICATIONS WOULD LIKELY BE PRIVILEGED IN A LAWYER
CLIENT SCENARIO. SO WE BELIEVE THAT THE COURT SHOULD MAKE AN INSTRUCTION AS TO
HOW THAT PRIVILEGE SHOULD BE INTERPRETED. IT'S NOT SIMPLY THAT THE
COMMUNICATIONS MUST RELATE TO AN ONGOING CRIME OR FRAUD, BUT IT'S THAT IT MUST ADVANCE
OR PERPETUATE THAT CRIME OR FRAUD AND SIMILAR TO THE LANGUAGE THAT THIS COURT
USED IN TERRY, WHICH IS THAT THERE'S COLLUSION BETWEEN SPOUSES TO ADVANCE
A JOINT CRIMINAL ENTERPRISE, SO THAT IS THE DEFINITION OF THE CRIME FRAUD EXCEPTION
AND A SIMILAR ONE SHOULD APPLY TO THE MARITAL PRIVILEGE AS IT DOES TO THE
ATTORNEY/CLIENT PRIVILEGE. UNLESS THERE'S R THERE'S ANY QUESTIONS, I WILL RELY
ON MY BRIEFS AND EVERYONE ELSE'S ARGUMENTS. THE COURT:
CHIEF JUSTICE RABNER: THANK YOU, MR. HEIN? MR.
HEIN: THANK YOU, YOUR HONORS, IN THIS CASE THE COURT IS TASKED WITH DECIDING WHETHER
THE UNREASONABLE PROTECTION OF COMMUNICATIONS BETWEEN SPOUSES RELATED
TO THEIR JOINT CRIMES SHOULD CONTINUE TO IMMUNIZE SPOUSE'S CRIMINAL ACTIVITY OR
WHETHER SUCH COMMUNICATIONS SHOULD BE ROOTED OUT AS UNWORTHY OF PROTECTION
AS THIS COURT DECIDED IN TERRY NO MATTER WHEN THE WORDS WERE UTTERED. THEY MOST
CERTAINLY SHOULD BE, AND AS THEY WERE IN THIS CASE AND THERE'S NO REASON WHY
THEY CAN'T. ONE THING I FOUND NOTABLE AS I LISTENED TO COUNSEL'S ARGUMENTS THIS
MORNING IS THAT THERE'S BEEN NO DISCUSSION WHATSOEVER ON THE PARTICULAR REASONS
BEHIND THE CRIME FRAUD EXCEPTION TO BEGIN WITH. WE'RE NOT ASKING, THE STATE
IS NOT HERE AND I DON'T THINK ANYONE WOULD EVER ASK TO ABOLISH THE MARITAL PRIVILEGE,
BUT WHAT HAPPENED IN TERRY, THIS COURT DECIDED TO ABOLISH AN ASPECT OF IT,
THAT WAS NEVER INTENDED. IT WAS NEVER INTENDED THAT SPOUSES SHOULD BE ABLE TO
COMMUNICATION WITH EACH OTHER ABOUT THEIR ONGOING CRIMES AND THAT THOSE
COMMUNICATIONS SHOULD REMAIN IMMUNIZED, WE'RE TALKING ABOUT PRIVILEGES WHICH HAVE
ALWAYS BEEN CONSTRUED NARROWLY AND WHICH ONLY EXIST TO THE EXTENT THAT THEY
SERVE SOCIETY'S INTERESTS. TO RULE OTHERWISE WOULD ESSENTIALLY TURN THE PRIVELEGES
ON THEIR HEAD AND SOCIETY'S INTEREST WOULD BE SUB VEFSH YENT TO WHATEVER THE
PRIVILEGE EXISTED AT THE TIME THE CRIME OR AN ACT OCCURRED. I
WANTED TO BEGIN AND I DON'T REALLY HAVE AN OPENING SO I'D INVITE QUESTIONS AT ANY POINT,
BUT I'D LIKE TO BEGIN BY ADDRESSING THE CARAMEL FACTOR THAT WAS DISCUSSED
A LITTLE BIT EARLIER AND ECHO SOME OF THE QUESTIONS THAT JUSTICE PATTERSON AND
JUSTICE PAYER LIEU WEE MENTIONED, THERE'S NO QUESTION THAT THE FOURTH FACTOR
IN THOSE LIST OF FAKSDS AS DISCUSSED IN CARAMEL DOES NOT APPLY IN THIS CASE. THOSE
FACTORS WERE CLEARLY -- OR THAT FACTOR CLEARLY TALKED SIMPLY ABOUT NEW RULES
THAT AUTHORIZED A CONVICTION UNLESS EVIDENCE HAD BEEN PREVIOUSLY REQUIRED. CAR
NELL OF COURSE DISCUSSED A NEW RULE OF EVIDENCE THAT ENABLED THE STATE TO
CONVICT A SEX OFFENDER WITH LESS EVIDENCE THAN IT NEEDED AT THE TIME WHEN THE CRIME
OCCURRED. AND THE CARAMEL COURT VERY REASONABLY DECIDED THAT THAT NEW
STATUTE'S PRACTICAL EFFECT WAS TO LOWER THE QUANTUM OF EVIDENCE OR OF PROOF
NECESSARY TO CONVICT. HERE WE HAVE A PRIVILEGE, AN UNREASONABLE INTERPRETATION
OF A PRIVILEGE, THAT NO LONGER APPLIES. JUSTICE ALBIN: MR.
HEIN, I ASKED THIS QUESTION OF MISS JARIT AND I'D LIKE TO ASK IT OF YOU, COULD
THIS COURT AND THE LEGISLATURE ABOLISH THE MARITAL PRIVILEGE AND APPLY ITS AB
ABOLITION RETROACTIVELY. MR. HEIN: YOU KNOW, I OBVIOUSLY HAVE BEEN
THINKING ABOUT THAT QUESTION SINCE YOU ASKED AND I'M NOT ENTIRELY SURE,
THAT'S OBVIOUSLY NOT WHAT HAPPENED HERE, BUT I WOULD VENTURE TO SAY THAT NO, BUT
THIS CASE IS DISTINGUISHABLE HERE, AND I CAN EXPLAIN WHY. JUSTICE
ALBIN: WELL FIRST TELL ME WHY NOW, WHY COULDN'T WE DO IT? IS IT BECAUSE -- I'M
TRYING TO DEFINE WHAT THIS PRIVILEGE IS, AND IF YOUR ANSWER TORP QUESTION
IS NO, YOU COULDN'T DO IT, IS IT BECAUSE YOU'RE RECOGNIZING THAT THE SPOUSAL PRIVILEGE
IS A SUB STAND TICH RIGHT AND THEREFORE IT COULD NOT BE ABOLISHED RETROACTIVELY,
IS THAT THE REASON WHY YOU'RE ANSWERING NOW. MR. HEIN: I'M
SORRY, I'M SORRY, I MUST HAVE MISUNDERSTOOD THE QUESTION, NO, MY ANSWER IS
YES. JUSTICE ALBIN: OH, YOU COULD, SO YOUR POSITION IS THE
LEGISLATURE AND THIS COURT COULD ABOLISH THE SPOUSAL PRIVILEGE AND APPLY IT REDDER
ACTIVELY. SO IN THIS PARTICULAR CASE ASSUMING THERE WAS NO CRIME FRAUD
EXCEPTION AND THEY ENGAGED IN A REGULAR MARITAL COMMUNICATION, IT'S YOUR POSITION
THAT THE ABOLITION COULD WORK RETROACTIVELY AND THE COMMUNICATIONS COULD BE
INTRODUCED INTO EVIDENCE. CORRECT? MR. HEIN: WELL, MY POSITION
IS I TAKE IT A BIT -- I DISAGREE WITH THE WORD RETROACTIVELY I GUESS IN YOUR
HYPOTHETICAL BECAUSE I DON'T THINK THERE'S FLIG RETROACTIVELY TAKING PLACE HERE, THIS IS
A -- JUSTICE ALBIN: LET ME BE CLEAR ABOUT MY QUESTION. THERE'S
A SPOUSAL COMMUNICATION LET'S SAY IN 2015, AND IN 2020 THE LEGISLATURE AND THE
COURT SAYS THERE WAS NO SPOUSAL PRIVILEGE. AND THE TRIAL IS IN 2021. YOUR
POSITION IS DESPITE THE FACT THAT THE COMMUNICATION WAS IN 2015, THE LAW WAS
CHANGED IN 2020, THE SPOUSAL COMMUNICATION CAN BE INTRODUCED AT TRIAL. CORRECT?
OR NOT CORRECT? MR. HEIN: THAT'S CORRECT, YOUR HONOR, AND I
BELIEVE I UNDERSTOOD THE QUESTION INITIALLY, THE SEMANTICS I THINK IS IMPORTANT
IN THIS CASE, BECAUSE THE DEFENSE AND IN YOUR QUESTION, YOUR HONOR, YOU TALK ABOUT
A RETROACTIVE APPLICATION AND WE SIMPLY DON'T BELIEVE NOTHING IS HAPPENING
RETROACTIVELY HERE, THIS IS A PROSPECTIVE INTERACTION OF THE RULE OF EVIDENCE BECAUSE
IT MERELY ALTERS THE SCOPE IN TRIAL. CHIEF JUSTICE RABNER:
CARAMEL SPOOSHGS ABOUT EVENHANDED RULES OF EVIDENCE, THIS ONE ONLY SEEMS TO
APPLY TO ONE SIDE, ONLY THE PROSECUTION CAN BENEFIT FROM IT, ISN'T THAT CORRECT?
MR. HEIN: WELL, YOU'RE CORRECT, YOUR HONOR, IT ALSO MENTIONED
THAT EVENHANDED NECESSARY, MY INTERPRETATION OF THE LANGUAGE IN THAT CASE
IS THAT EVENHANDEDNESS IS ONE OF A FEW AND MAYBE EVEN THE LEAST IMPORTANT
OF THOSE FACTORS BUT I WOULD ARGUE THAT IT CAN APPLY EVENHANDEDLY, OBVIOUSLY IN
OUR CASE IT DOESN'T, HOWEVER THERE ARE CIRCUMSTANCES I COULD IMAGINE WHERE A
CO-DEFENDANT WARRANTED TO INTRODUCE TESTIMONY OF CRIME FRAUD COMMUNICATIONS BETWEEN
ANOTHER CO-DEFENDANT AND HIS CO-DEFENDANT'S SPOUSE AND WOULD SEEK TO
BENEFIT FROM THAT, NOT TO THE BENEFIT OF THE STATE OF COURSE BUT TO THE BENEFIT
OF HIMSELF. CHIEF JUSTICE RABNER: IF IT'S EASY FOR THEM TO
ACTUALLY GET THAT EVIDENCE, THAT'S THE PRACTICAL EXTENSION. MR.
HEIN: THAT'S CORRECT, YOUR HONOR, BUT ASSUMING THAT THAT EVIDENCE WAS DISCOVERED
AND PASSED ALONG IN DISCOVERY, IT ACTUALLY COULD HAVE VERY EASILY HAPPENED
IN A CASE LIKE THIS WHERE THERE WERE WIRE TAPS AND THERE WAS EVIDENCE IN TEXT MESSAGES
AND FROM ALL OTHER PARTIES THAT IT VERY EASILY COULD HAVE HAPPENED THAT
ONE OF THESE OTHER CO-DEFENDANTS WHICH THERE WERE NUMEROUS COULD HAVE FOUND SOMETHING
IN THOSE TEXT MESSAGES BETWEEN THOSE SPOUSES THAT WOULD HAVE BENEFITED HIM
AND USED THEM. AND SO IN THAT KAY I DO BELIEVE IT'S EVENHANDED, WHILE YES IT MAY
BENEFIT THE STATE MORE OFTEN THAN NOT, I DON'T BELIEVE THAT MEANS IT'S NOT AND
HANDED OR COULD APPLY IN EITHER DIRECTION. CHIEF JUSTICE RABNER:
TELL US, IF THE STATE HAD RESTED IN THIS CASE ENTIRELY ON TEXT MESSAGES THAT
PREDATED THE ACTUAL ADOPTION OF THE REVISED RULE, WOULD YOUR POSITION BE THE SAME,
COULD YOU CONVICT ANYONE IF THE ONLY EVIDENCE YOU HAD CAME FROM COMMUNICATIONS
MADE AT A TIME THAT THE RULE PROTECTED THEM. MR. HEIN: JUST
TO MAKE SURE I'M UNDERSTANDING YOUR HONOR'S QUESTION CORRECTLY, ARE YOU
GETTING AT THAT FOURTH CARAMEL FACTOR ON WHETHER OR NOT IF THAT'S THE ONLY EVIDENCE,
THEN THEREFORE IT WOULD VIOLATE THAT FOURTH FACTOR? CHIEF
JUSTICE RABNER: NO, I'M ASKING A BROADER QUESTION. ASSUME THAT THIS CASE RESTED
ENTIRELY ON THIS AND PERHAPS OTHER TEXT MESSAGES THAT WERE NOT PROTECTED
-- EXCUSE ME, THAT WERE PROTECTED AT THE TIME THE COMMUNICATIONS WERE MADE.
MR. HEIN: YES, I BELIEVE WE WOULD FOR THE VERY SAME REASONS THAT WE COULD
PREVAIL AS IT IS, I DON'T UNDERSTAND HOW I DON'T SEE HOW THAT WOULD ALD THE
ANALYSIS IN ANY WAY, REGARDLESS THOSE TEXT MESSAGES SHOULD COME IN BECAUSE AS
WE'RE ARGUING IT IS AN ORDINARY RULE OF EVIDENCE THAT CHANGED AND THEREFORE THE
CRIME FRAUD EXCEPTION SHOULD APPLY. I THINK IT'S IMPORTANT
TO NOTE TOO THAT TALKING ABOUT UNFAIRNESS, YOU KNOW, OUR DWRAERS TALK A LOT
ABOUT UNFAIRNESS AND THE CARAMEL COURT, ROSE -- OUR COURTS IN ROSE AND THEN CITING
CARAMEL SPECIFICALLY NOTED THAT YES THERE IS SOME UNFAIRNESS THAT TAKES PLACE
WHEN THERE'S A CHANGING RULE OF EVIDENCE, TO THE EXTENT ONE MAY CONSIDER
CHANGES TO ITS RULES UNFAIR OR UNJUST THEY DO NOT IMPLICATE THE SAME KIND OF UNFAIRNESS
AS THOSE SETTING FORTH A SUFFICIENCY OF THE EVIDENCE STANDARD, AND THAT'S
BECAUSE THE STATE, THIS CHANGE IN LAW HAD NO IMPACT ON WHETHER THE STATE COULD
MEET ITS BURDEN. THE BAR, IF CONVICTION IS A BAR, THE BAR WAS NOT LOWERED
AS A RESULT OF THIS CHANGE OF EVIDENCE RULE. HAD IT BEEN LOWERED LIKE IT WAS IN
CARAMEL, WELL THEN YES, OF COURSE THERE WOULD BE AN EX POST FACTO PROBLEM
THERE. JUSTICE ALBIN: I TAKE IT THAT YOU DO NOT CONSIDER THE
MARITAL PRIVILEGE TO BE A SUBSTANTIVE RIGHT, CORRECT, OR AM I MISTAKEN ABOUT THAT.
MR. HEIN: INSOFAR AS IT'S A PRIVILEGE, IT'S NARROWLY CONSTRUED
AND ONLY EXISTS TO THE EXTENT THAT IT SERVES SOCIETY'S INTEREST, ABSOLUTELY NOT.
JUSTICE ALBIN: DO YOU CONSIDER ANY OF THE PRIVILEGES SUBS
TANTIVE RIGHTS. MR. HEIN: I THINK THERE ARE SOME PRIVILEGES THAT
CERTAINLY HAVE KOOUSHL UNDER PINKS, SUCH AS ATTORNEY/CLIENT PRIVILEGES, CERTAINLY
THAT HAS UNDERPINNINGS IN THE RIGHT AGAINST SELF INCRIMINATION.
JUSTICE PATTERSON: I'M SORRY, I WAS NOT FOLLOWING YOUR RESPONSE TO JUSTICE ALBIN'S
QUESTION, DO YOU OR DO YOU NOT CONSIDER THE MARITAL EXCEPTION TO BE A
SUBSTANTIVE RIGHT, BECAUSE THERE WERE A COUPLE OF NEGATIVES THERE --
MR. HEIN: YES, JUSTICE PATTERSON, I DO NOT, I CONSIDER IT TO BE A RULE OF EVIDENCE
THAT THIS COURT OR THE LEGISLATURE COULD CHANGE AND THAT TRIALS ARE TO ENFORCE
AT THE TIME OF TRIAL, WHENEVER THAT TRIAL OCCURS. CHIEF JUSTICE
RABNER: ACCEPT JUSTICE ALBIN'S SUGGESTION IN HIS QUESTION THAT THE PRIVILEGE,
THE MARITAL PRIVILEGE IS A SUBSTANTIVE RIGHT, IS THIS ASPECT OF THE PRIVILEGE
A SUBSTANTIVE RIGHT AND CAN IT BE LOOKED AT IN THAT FASHION. MR.
HEIN: I BELIEVE IT COULD BE, SO IF THIS COURT WERE TO FIND THAT PRIVILEGES ARE
SUBSTANTIVE RIGHTS OR THAT THE MARITAL PRIVILEGE IN PARTICULAR IS A
SUBSTANTIVE RIGHT, THIS PARTICULAR RULE DID NOT REMOVE ANY SUBSTANTIVE RIGHT, THERE
WAS NOTHING SUBSTANTIVE TAKEN AWAY, I BELIEVE THIS COURT IN TERRY AND IN THE
LEGISLATURE ITSELF CLEARLY SAID THAT THIS NEW RULE SERVES TO REMOVE AN UNINTENDED
CONSEQUENCE OF THE MARITAL PRIVILEGE AND PRESERVE EVERY SINGLE PURPOSE BEHIND
IT, EVERY SINGLE PURPOSE THAT THE MARITAL PRIVILEGE IS DESIGNED TO PROTECT HAS BEEN
RETAINED DESPITE THIS NEW RULE, AND SO I DON'T THINK YOU CAN SAY THAT A
SUBSTANTIVE RIGHT HAS BEEN REMOVED. YES, PERHAPS, I'M NOT CONCEDING BUT PERHAPS
ON ANOTHER DAY ON ANOTHER CASE IN THIS COURT OR THE LEGISLATURE WHICH I CAN'T
IMAGINE EVER WOULD REMOVED THE MARITAL PRIVILEGE, PERHAPS THERE WOULD BE A SUBSTANTIVE
RIGHT THERE, NOT CONCEDING, BUT TO THE EXTENT THAT THE CRIME FRAUD EXCEPTION
REMOVED ANY ASPECT OF THE PRIVILEGE, THAT ASPECT WAS CERTAINLY NOT SUBSTANTIVE.
JUSTICE ALBIN: WILL IT OPEN UP THE PRIVILEGE, BECAUSE THERE IS
DEBATE AMONG THE ATTORNEYS HERE ABOUT WHETHER OR NOT THIS ACTUALLY FALLS WITHIN
THE CRIME FRAUD EXCEPTION, WHETHER IT'S ONGOING, SO THAT MEANS IT GOES TO
THE JURY, WHETHER IT FITS WITHIN IT OR IT DOESN'T FIT WITHIN IT, AND THAT OPENS
UP THE ENTIRE SPOUSAL PRIVILEGE. DO YOU AGREE? MR. HEIN:
I DISAGREE, YOUR HONOR. OF COURSE TRIAL JUDGES ACT AS GATE KEEPERS, THEY'RE NOT
JUST GOING TO ALLOW THE STATE OR ANY OTHER PARTY TO WILLY NILLY ADMIT EVIDENCE
AND CLAIM -- JUSTICE ALBIN: NOT WILLY NILLY BUT IF IT'S SUBJECT
TO TWO REASONABLE INTERPRETATIONS, IT IS OR IT ISN'T, THEN IT'S GOING TO GO TO
THE JURY. CORRECT? MR. HEIN: CORRECT. I THINK IF A TRIAL
JUDGE FINDS THAT THERE'S A REASONABLE INTERPRETATION THAT IT FALLS UNDER THE
CRIME FRAUD EXCEPTION, THEN IT GOES TO THE JURY. I DON'T THINK THAT CREATES SOME
KIND OF SLIPPERY SLOPE WHERE PRIVILEGES ARE SUBJECT TO SUBSTANTIVE DUE PROCESS
VIOLATIONS OR ANYTHING LIKE THAT. I THINK THIS IS A VERY NARROW EXCEPTION THAT WAS
DRAWN THAT THIS COURT AND THE LEGISLATURE EMPHASIZED WAS NEVER THE INTENDED
PURPOSE AND THERE WAS NOT SUBSTANTIVE THAT WAS TAKEN AWAY, AGAIN, THE LEGISLATURE
MADE THAT VERY CLEAR AND I THINK THIS COURT MADE THAT VERY CLEAR IN TERRY
THAT THIS MERELY SERVED TO REMOVE AN UNINTENDED CONSEQUENCE OF THE PRIVILEGE.
YOU CAN'T -- REMOVING SOMETHING THAT WAS NEVER INTENDED EVEN IF IT'S A
SUBSTANTIVE RIGHT DOESN'T REMOVE ANYTHING SUBSTANTIVE. JUSTICE
PIERRE-LOUIS: MR. HEIN, WHAT IS YOUR SUMMONS TO MISS JARIT'S RERNS TO THE NOTICE
TO RULE 509 THAT INDICATE THAT THE AMENDMENT TO THE RULE IS TO BE RETRO
ACTIVE TO NOVEMBER 2015 WHEN THE LEGISLATURE PASSED THE STATUTE, WHAT IS YOUR RESPONSE
TO HER REFERENCE TO THAT AND HOW THAT PLACE INTO THE FAIRNESS AND THE
EXPECTATION OF INDIVIDUALS WITH REGARD TO THE COURT RULES AND WHAT WILL AND WILL
NOT BE ADMITTED. MR. HEIN: I DON'T NECESSARILY FEEL THAT THAT
SHOULD PLAY TOO MUCH OR HAVE TOO MUCH WEIGHT IN THE ANALYSIS. AGAIN, SINCE THIS IS
A RIGHT, THE PRIVILEGES IN AND OF THEMSELVES ARE CONSTRUED NARROWLY AND AGAIN
ONLY APPLY TO THE EXTENT THAT THEY SEARCH THE PUBLIC INTEREST. WHEN THIS
COURT FOUND THAT THIS DIDN'T SERVE THE PUBLIC INTERESTS, AND WHEN THE LEGISLATURE
FOUND THAT IT DIDN'T SERVE THE PUBLIC INTERESTS, THEN THE PRIVILEGE DIDN'T
APPLY. JUSTICE FUENTES: SOMETHING WAS ASKED WHAT A REASONABLE
LAWYER WOULD DO UNDER THESE CIRCUMSTANCES, WHEN A LAWYER CHECKS UNDER THE RULES
OF EVIDENCE AND SEES ON THE JUDICIARY WEB SITE A STATEMENT OF WHEN THE RULE
TAKES EFFECT, DO YOU THINK IT'S REASONABLE FOR A REASONABLE LAWYER TO RELY ON THAT.
MR. HEIN: WELL, ABSOLUTELY -- I DON'T THINK SO. PERHAPS I
MISUNDERSTOOD THE QUESTION. MY ANSWER IS TO SAY. JUSTICE FUENTES:
I'M A LAWYER, I'M LOOKING AT THE RULES OF EVIDENCE, I GO TO THE JUDICIARY WEB SITE
AND IN THE WEB SITE IT SAYS IS EFFECTIVE NOVEMBER, 2015. I DON'T HAVE A
RIGHT TO RELY ON THAT? MR. HEIN: WELL, YOU COULD -- I BELIEVE A
REASONABLE LAWYER COULD RELY ON AN EFFECTIVE DATE, BUT THEY -- IT WOULD
BE -- I DON'T THINK A REASONABLE LAWYER WOULD DO SO WITHOUT LOOKING INTO IT FURTHER,
WITHOUT LOOKING AT THE REASONS BEHIND THE RULE, WITHOUT LOOKING BEHIND --
AND ALSO I SHOULD NOTE THAT A REASONABLE LAWYER WILL LOOK AT A RULE OF EVIDENCE
EFFECTIVE DATE AND THINK, OH, OKAY, ANY TRIAL AFTER THAT EFFECTIVE DATE IS
GOING TO APPLY THAT NEW RULE, WHICH IS EXACTLY WHAT HAPPENED HERE.
JUSTICE PATTERSON: SO IF YOU WERE IN THE SITUATION OF A REASONABLE LAWYER BEFORE THAT
DATE BUT THERE IS A SITUATION HAPPENING THAT COULD RESULT IN A TRIAL AFTER
THAT DATE, IF YOU SAW THAT, HAPPENED TO SEE WHAT THAT WOULD BE, WOULD YOU BE ADVISING
A CLIENT NOT TO MAKE THOSE COMMUNICATIONS BECAUSE TRIAL MAY OCCUR AFTER THE
EFFECTIVE DATE? MR. HEIN: ABSOLUTELY. ABSOLUTELY. BECAUSE MY
INTERPRETATION WOULD BE THAT A CHANGE TO THE RULE OF EVIDENCE THAT'S MERELY AN
ORDINARY RULE OF EVIDENCE, THAT DOESN'T CHANGE THE QUANTUM OF EVIDENCE REQUIRED
TO PROVE GUILT IS GOING TO APPLY AT THE TIME OF TRIAL. WHICH IS EXACTLY
WHAT HAPPENED HERE. AND SO THAT WOULD BE MY RECOMMENDATION TO THAT CLIENT.
JUSTICE ALBIN: SO IF THERE IS AMBIGUITY ABOUT WHETHER IT'S RETROACTIVE
FOR PURPOSES OF WHEN THE COMMUNICATION OCCURRED OR FOR THE PURPOSES OF WHEN THE
TRIAL BEGINS, ASSUMING THAT THERE IS AMBIGUITY ABOUT THAT, THEN WE EVER
THIS DOCTRINE OF MANIFEST INJUSTICE IN TERMS OF THE WAY WE INTERPRET LEGISLATION,
AND WE ARE COUNSELED TO CONSTRUE THE LEGISLATION IN A WAY THAT IS NOT GOING
TO ABROGATE PREVIOUSLY EXISTING RIGHTS, THAT'S IF WE WERE TO GO TO THAT INTERPRETIVE
CANNON AND WHY WOULDN'T WE THEN, IF WE COULDN'T TELL WHETHER OR NOT THE
LEGISLATURE WANTED IT RETROACTIVE TO THE DATE OF THE COMMUNICATION OR FOR THE PURPOSE
OF THE TRIAL. GO AHEAD. MR. HEIN: YOU KNOW, I HAVEN'T THOUGHT
ABOUT THAT SIMPLY BECAUSE I DON'T THINK THERE'S ANYTHING AMBIGUOUS. PERHAPS
IF THERE WAS AN APPLE AMBIGUOUS THING, THEN, YES, THAT WOULD REQUIRE A WHOLE OTHER
ANALYSIS. I'M NOT REALLY PREPARED TO DO THAT. WHAT I'M PREPARED TODAY
TO ARGUE IS THAT THERE IS NO AMBIGUITY WHEN THE LEGISLATURE CLEARLY INDICATES THAT
ALL OF THE PURPOSES BEHIND THE PRIVILEGE HAVE REMAINED AND ALL OF THE
UNINTENDED CONSEQUENCES OF THE PRIVILEGE WITHOUT THIS EXCEPTION HAVE BEEN REMOVED.
I DON'T SEE ANY AMBIGUITY IN THAT WHATSOEVER. JUSTICE
PATTERSON: ARE YOU AWARE OF ANY OTHER CASES WHERE THERE'S BEEN A FOCUS ON THAT
TYPE OF LANGUAGE IN A RULE OF EVIDENCE COMMENT? WHEN THERE'S BEEN A RULE
OF EVIDENCE CHANGE? MR. HEIN: I'M NOT, YOUR HONOR. YOU KNOW,
WE -- LOOKING AT CASES AROUND THE COUNTRY, THERE CERTAINLY HAVE BEEN OTHER
CHANGES TO THE MARITAL PRIVILEGE THAT HAVE BEEN FOUND TO BE -- TO APPLY AT THE
TIME OF TRIAL, DESPITE WHEN THE CRIME OCCURRED. FOR EXAMPLE, IN MICHIGAN
THAT COURT -- THAT STATE AMENDED TO ALLOW THE DISCRETION OF THE SINGLE SPOUSE AND
THE COURT RULED THAT THAT DIDN'T MODIFY THE EVIDENCE NECESSARY TO OBTAIN
A CONVICTION SO IT FOUND THAT THERE WAS NO EX POST FACTO VIOLATION AND ONE MIGHT
SAY THIS IS DIFFERENT, I WOULD ARGUE THAT THAT CHANGE IS EXTREMELY SIGNIFICANT,
IT CUTS -- I THINK THIS COURT HAS RULED IN CASES THAT THAT CHANGE, WHEN THIS COURT
MADE THAT CHANGE OR WHEN THIS STATE MADE THAT CHANGE, THAT THAT SEVERELY
WEAKENED THE PRIVILEGE, SEVERELY WEAKENED THE PRIVILEGE BECAUSE IT REMOVED A GREAT
DEGREE OF EXPECTATION OF PRIVACY IF ONE SPOUSE COULD AT ANY POINT DECIDE TO
DISCLOSE WHAT THE OTHER SPOUSE SAID. AND SO I WOULD ARGUE THAT WHILE IT'S NOT THE
SAME CHANGE AS THE CRIME FRAUD EXCEPTION THAT THE MICHIGAN COURT GO IT RIGHT, THE
MICHIGAN COURT GOT IT RIGHT WHEN IT FOUND THAT THAT RULE DIDN'T MODIFY THE
EDGED NECESSARY TO OBTAIN A CONVICTION, SO IT DIDN'T FALL UNDER THAT FOURTH CARAMEL
CATEGORY AND THEREFORE THERE WAS NO EX POST FACTO VIOLATION.
CHIEF JUSTICE RABNER: I'D LIKE YOU TO TELL US OF THE -- OF THE COMMENT AFTER THE
RULE, I'D LIKE YOU TO HELP US, IT IS A STATEMENT ABOUT AN EFFECTIVE DATE THAT
WAS MADE AFTER THE LEGISLATION WAS PASSED, AFTER THE CONDUCTS IN THIS CASE TOOK PLACE.
DOES THE COURT TYPICALLY RULE ON RETROACTIVITY IN THAT FASHION?
MR. HEIN: YOUR HONOR -- CHIEF JUSTICE RABNER: DO YOU TAKE
IT AS A SUBSTANTIVE ANALYSIS OF RETROACTIVITY FROM THE COURT'S COMMENT
IN -- I DON'T HAVE THE RULE BOOK IN FRONT OF ME ON BAFR DATE THAT COMMENT WAS INSERTED.
MR. HEIN: NO, YOUR HONOR, I DON'T. AND TO THE ASK AT THE PRESENT
TIME -- PERHAPS I'M JUST BEING A BIT CIRCUITOUS, BUT TO THE EXTENT THAT IT DOES,
IT DOESN'T DEFEAT OUR ARGUMENT, BECAUSE THIS TRIAL TOOK PLACE LONG AFTER
THAT. I GUESS TO THE EXTENT THAT WE'RE TALKING ABOUT A SUBSTANTIVE CHANGE, AGAIN,
YOU'RE ARGUMENT AGAIN IS THAT THERE WAS NO SUBSTANTIVE CHANGE TO THE RULE.
EVERY DEGREE OF SUBSTANCE IN THE PRIVILEGE STILL EXISTS TODAY, THE ONLY THING REMOVED
WAS SOMETHING THAT WAS NEVER INTENDED TO BE THERE ANYWAY, SO YOU DIDN'T REMOVE
ANY SUBSTANCE. THEREFORE ANY DEGREE OF RELYING ON THAT AT THE TIME IT WAS MADE
WAS NOT A SUBSTANTIVE RIGHT. CHIEF JUSTICE RABNER: WOULD YOU
LIKE TO ADDRESS THE HARMLESS ERROR QUESTION. MR. HEIN: I
WOULD LOVE TO, YOUR HONOR, THANK YOU. FIRST WE WOULD ARGUE OF COURSE THAT THEY
DID FALL UNDER THE EXCEPTION, WE DO FEEL LIKE THESE TEXT MESSAGES WERE EVIDENCE
RELATED OR COMMUNICATIONS RELATED TO AN ONGOING CRIME, AND THAT IT WAS A JOINT
ONGOING CRIME. YOU KNOW, THIS -- THE CRIME WAS CONSPIRACY, AND IT'S
IMPORTANT TO REMEMBER THAT A CONSPIRACY CONTINUES UNTIL THE OBJECTIVE IS FULFILLED.
AS THE INDICTMENT IN THIS CASE INDICATED, THE CONSPIRACY LASTED FROM A CERTAIN
POINT ALL THE THROUGH OCTOBER I BELIEVE 28 OF 2014, THESE TEXT MESSAGES WERE CENTER
IN SEPTEMBER 2014 SO THE CONSPIRACY WAS STILL HAPPENING AS THE STATE'S THEORY
WAS AT THE TIME OF TRIAL, AND THIS COURT HAS HELD THAT CONSPIRACY RELATED TO PAST
VEFRNTS MAY BE ADMISSIBLE IF THEY SERVE SOME CURRENT PURNS SUCH AS TO PROVIDE
COHESIVE NECESSARY, TO PROVIDE HREHA INSURANCE TO A CO-CON SPEERTD OR RESPOND IN A
FURTHER WAY THAT FURTHERS THE GOAL OF THE CONSPIRACY. OF COURSE THE STATE'S
POSITION WAS THAT THAT'S EXACTLY WHAT THESE TEXT MESSAGES DID. PERHAPS A TEXTBOOK
EXAMPLE OF PROVIDING COHESIVE NECESSARY WITH THIS CO-CON SPEERTD OR THE HREHA
INSURANCES THAT EVERYTHING WAS GOING TO BE OKAY, TO PROMPT THEM, TO LET THEM
ASK, WE'RE GOING TO BE GOOD, TO CHOOSE TO HELP US BEAT THIS, OR I GOT US, WATCH,
SO OUR FERS PRIMARY ARGUMENT OF COURSE IS THAT THESE FELL UNDER THE EXCEPTION.
NOW IF THIS COURT WERE TO RULE THAT THE EXCEPTION SHOULDN'T HAVE APPLIED OR IF
IT DID APPLY THAT THESE TEXT MESSAGES DIDN'T FALL UNDER THE EXCEPTION OF
COURSE WE DO HAVE THE HARMLESS ERROR ARGUMENT. IT'S HARD TO IMAGINE A HARMLESS
MORE HARMLESS THAN ONE THAT LED TO ACQUITTAL, WHICH IS OUR MAIN POSITION IN THIS
CASE, SHE WAS ACQUITTED OF CONSPIRACY AND THESE TEXT MESSAGES WERE ADMITTED
AS PROOF OF THE CONSPIRACY, SHE WAS ONLY CONVICTED OF OFFICIAL MISCONDUCT FOR WHICH
SHE GAVE STATEMENTS ADMITTING TO ACCESSING REPORTS AND THE SHARING OF CON
FIDENTIAL BRIEFING. THERE WAS ALSO A LOT OF CIRCUMSTANTIAL EVIDENCE AS WELL IN
ADDITION TO HER STATEMENTS WHICH INCLUDED THE NUMEROUS NUMEROUS PHONE CALLS
THAT WERE MADE PRIOR TO THE WIRETAP GOING INTO EFFECT AND THEN ONCE THE WIRETAP
GOES INTO EFFECT THE NUMBER OF PHONE CALLS FALLS EXPONENTIALLY. I BELIEVE 125
CONE R PHONE CALLS WERE MADE BETWEEN THE DEFENDANT AND OTHER TARGETS IN THE
INVESTIGATION BEFORE THE WIRE, AFTER THE WIRE, 6. 939 CALLS WERE MADE BETWEEN THE
DEFENDANTS AND OTHER TARGETS IN THE -- OR THE DEFENDANT'S HUSBAND AND OTHER
TARGETS IN THE OPERATION, AGAIN, ONLY 6 AFTERWARD. THAT EVIDENCE CLEARLY WENT
TO THE BENEFIT RECEIVED THROUGH HER OFFICIAL MISCONDUCT. IN
ADDITION, THESE TEXT MESSAGES WERE SENT IN SEPTEMBER AND WE KNOW THAT THE CONSPIRACY
WAS ONGOING BECAUSE THE SECOND OFFICIAL MISCONDUCT COUNT DIDN'T TAKE PLACE
UNTIL OCTOBER WHEN SHE SHARED THAT BRIEFING, AND SO WE KNOW THIS WASN'T THE END
OR THIS WASN'T AN AFTER THOUGHT CONVERSATION ONCE SHE DECIDED TO STOP
CONSPIRING, AT LEAST THAT WAS THE STATE'S POSITION AT TRIAL, BUT THESE THINGS CONTINUED
UNTIL AND THROUGH OCTOBER. AND SO THAT WAS THE STATE'S POSITION, THAT WAS THE
STATE'S ARGUMENT, AND TO EXTENDER THAT THESE TEXT MESSAGES HAD ANYTHING TO DO WITH
OFFICIAL MISCONDUCT, IT WAS VERY, VERY, VERY LIMITED. JUSTICE
PATTERSON: JUST TO FOLLOW-UP -- NO, PLEASE, JUSTICE ALBIN, GO AHEAD.
JUSTICE ALBIN: I WAS JUST GOING TO ASK YOU I'M SORRY A VERY TECHNICAL FACTUAL
ISSUE BECAUSE I OPENED UP THE RULES OF EVIDENCE AND AT THE END OF IT, THE
RULE IN THE RULE BOOK IT HAS, IT'S AN END NOTE AND IT SAYS AMENDED BY LEGISLATURE
L 2015 CHAPTER 138 SECTION 2 EFFECTIVE NOVEMBER 9TH, 2015. AND MY QUESTION
TO YOU, BECAUSE I DON'T HAVE THE BILL IN FRONT OF ME, IS THAT A REPRESENTATION OF
WHAT WAS ON THE LEGISLATIVE BILL, EFFECTIVE NOVEMBER 9TH, 2015? THAT'S WHAT
THE -- IS THAT WHAT THE LEGISLATURE SAID? NOT WHAT SOME COMMENT SAID.
MR. HEIN: THANK YOU. JUSTICE ALBIN: DO YOU FOLLOW ME.
MR. HEIN: YES, I HAVE IT RIGHT HERE, YOUR HONOR, IN FACT IN THE
END NOTES OR WHERE THEY'RE OFFERING -- OR AT THE VERY END POINT 3 OF P L 2015
CHAPTER 138 IT SAYS 3, THIS ACT SHALL TAKE IMMEDIATELY, AND THEN APPROVED,
NOVEMBER 9TH, 2015. JUSTICE ALBIN: OKAY, SO IT WAS EFFECTIVE.
MR. HEIN: THERE WAS NO GAP BETWEEN WHEN THIS LEGISLATION WAS APPROVED
AND WHEN IT BECAME EFFECTIVE, IT BECAME EFFECTIVE IMMEDIATELY.
CHIEF JUSTICE RABNER: IECH GOTTEN A COPY OF THE BOOK AND I WANTED TO PICK UP ON
SOMETHING JUSTICE ALBIN POINTED OUT, WHAT HAS BEEN REFERRED TO AS A COMMENT,
ARE WE TALKING ABOUT WHAT THE EDITORS OF THE HORNBOOK HAVE ADDED?
MR. HEIN: YES, THAT'S MY UNDERSTANDING. THAT'S SIMPLY THE EDITORS, I DON'T THINK
THAT THAT'S SOMETHING THE COURT SHOULD RELY ON AS THEY WOULD THE LEGISLATION
WHICH AS I JUST INDICATED CLEARLY SAID THAT THIS WENT INTO EFFECT IMMEDIATELY.
JUSTICE ALBIN: BUT WE STILL DON'T KNOW WHEN IT SAYS
EFFECTIVE NOVEMBER 9TH WHETHER OR NOT THAT MEANT IT WAS EFFECTIVE IN 2014 WHEN THE
COMMUNICATIONS OCCURRED, SO YOU STILL HAVE THE SAME DEBATE, IS IT EFFECTIVE
FOR THE TRIAL OR IS IT EFFECTIVE FOR THE ACTUAL COMMUNICATIONS. YES?
MR. HEIN: I AGREE, YES, YOUR HONOR. CHIEF JUSTICE RABNER: IN
EITHER EVENT THAT COMMENT EDITOR'S NOTE WHAT HAVE YOU IS NOT A DEFINITIVE
STATEMENT ON THE ISSUE BEFORE THE COURT. MR. HEIN: ABSOLUTELY NOT,
ABSOLUTELY NOT. I JUST CONCLUDE IN ADDITION TO HARMLESS, THE
STATE'S POSITION IS THAT NOT ONLY WAS THIS HARMLESS BUT THIS WAS ACTUALLY AN
INVITED ERROR. WHILE IT MIGHT NOT BE THE TEXTBOOK VERSION OF INVITED ERROR, IT'S
POOR TO REMEMBER THE PROCEDURAL HISTORY OF HOW THIS ISSUE CAME UP, THIS
ISSUE CAME UP BY THE DEFENSE'S MOTION MONTHS BEFORE TRIAL BEGAN AND THE DEFENSE
ARGUED, AS MY ADVERSARY IS ARGUING TODAY, THAT THE EX POST FACTO CLAUSE
PROHIBITED APPLICATION OR THE AVAILABILITY OF THIS CHANGING RULE AT THE TIME OF
TRIAL. THE JUDGE RULED, HOWEVER, THE JUDGE SPECIFICALLY RULED THAT HE WAS
NOT GOING TO ADDRESS PARTICULAR TEXTS, HE ONLY RULED TO THE GENERAL AVAILABILITY
OF THE CRIME FRAUD EXCEPTION FINDING THAT IT WOULD APPLY. NOW FAST FORWARD MARCH
BEFORE TRIAL HAVING BEEN TOLD SPECIFICALLY TO OBJECT AT THE TIME IF YOU
FELT LIKE THESE TEXT MESSAGES DIDN'T FALL WITHIN THE EXCEPTION, THE DEFENDANT ALLOWED
THEM TO COME IN, NO OBJECTION MADE, AND THEN WHEN THE DEFENDANT TESTIFIED
AT TRIAL, SPENT I DON'T KNOW EXACTLY HOW MUCH TIME BUT AT LEAST 8 TRANSCRIBED PAGES
GOING THROUGH THESE TEXT MESSAGES LINE BY LINE OFFERING HER ALTERNATIVE
THEORY OF THE CASE. CHIEF JUSTICE RABNER: ARE YOU SUGGESTING
THAT OBJECTING TO THE EVIDENCE COMING IN IN A PRETRIAL MOTION AND NOT VOICEING AN
ADDITIONAL OBJECTION ALONE CONSTITUTES INVITED ERROR. MR. HEIN:
I AM, YOUR HONOR. AND ONLY IN UNIQUE CIRCUMSTANCES LIKE THIS. OBVIOUSLY PLAIN
ERROR WOULD NORMALLY BE THE REVIEWING STANDARD WHEN NO OBJECTION HAS BEEN
MADE, BUT I BELIEVE WHEN A DEFENDANT BRINGS FORTH AN ISSUE SUCH AS THIS, MAKES,
YOU KNOW, ALL THE ARGUMENTS, EVEN AT ONE POINT SAYING THAT YOU KNOW, YOUR
HONOR, YOU'RE GOING TO NEED TO MAKE A DECISION, YOU KNOW, WHEN WE GETS GET TO THESE
TEXT MESSAGES YOU'RE GOING TO NEED TO FIND THAT THESE FALL UNDER THE CRIME FRAUD
EXCEPTION, IT WAS ON HIS RADAR -- JUSTICE PATTERSON: WHY WRNT AREN'T
YOU STICKING WITH YOUR HARNL LESSER ROR ARGUMENT. MR. HEIN:
WE'RE CERTAINLY NOT BACKING AWAY FROM IT, I'M JUST OFFERING THIS AS AN ALTERNATIVE.
JUSTICE PATTERSON: BECAUSE YOUR INVITED ERROR ARGUMENT SPEAKING
CANDIDLY AT LEAST IN MY OWN VIEW IS POTENTIALLY PROBLEMATIC WHEN YOU HAVE
SITUATIONS WHERE YOUR PRETRIAL RULING AND THE LAWYER FIGURES THAT THE --
THAT SHIP HAS SAILED, WHEN THE TIME COMES FOR THE EVIDENCE TO COME IN AT TRIAL.
DO YOU SEE WHAT I'M SAYING? THAT'S A BROAD VIEW OF INVITED ERROR. INVITED
ERROR IS GENERALLY SITUATIONS AT LEAST AS I UNDERSTAND IT WHERE A LAWYER
ENCOURAGES A COURT TO GO IN A PARTICULAR DIRECTION AS OPPOSED TO SIMPLY ACCEPTING
A PRETRIAL RULING AND NOT FIGHTING OVER IT IN THE EXIGENT SITUATION, THE
TRIAL GOING ON. MR. HEIN: I AGREE WHOLE HEARTEDLY WITH YOUR HONOR, I GET MY POINT IS THAT THIS WASN'T A SHIP HAS SAILED, THE ONLY SHIP HAS SAILED
SAILED REGARDING THE TEXT MESSAGES THEPGSZS AND THE DEFENDANT WAS SPECIFICALLY TOLD
THAT WHEN THOSE TEXT MESSAGES ARE REVEALED AND YOU HAVE A PROBLEM OF THEM FALLING
UNDER THE LANGUAGE OF THE RULE, WELL THEN VOICE YOUR OBJECTION.
CHIEF JUSTICE RABNER: DID DEFENSE COUNSEL IN ANY WAY ENCOURAGE THIS EVIDENCE TO BE
ADMITTED. MR. HEIN: WELL, YOUR HONOR, THERE'S SINCE OF OMISSION
AND SINCE OF COMMISSION, AND I BELIEVE UNDER THE INVITED ERROR STANDARD THERE ARE
INSTANCES AND THIS IS ONE WHERE NOT VOICING AN OBJECTION IS THE SAME THING
AS ACQUIESCING OR INVITING IT. CHIEF JUSTICE RABNER: I DON'T THINK
THAT'S ADVANCING YOUR ARGUMENT, JUST SPEAKING FOR ONE. MR.
HEIN: OKAY. WELL, WITH THAT THEN, YOUR HONOR, I DON'T HAVE ANYTHING TO ADD, UNLESS
THE COURT HAS ANY OTHER QUESTIONS, WE'D REST ON OUR BRIEF AND ASK THE COURT
TO AFFIRM BOTH COURTS MROE. THE COURT: THANK YOU
WILLIAM P. COOPER-DAUB: THE EX POST FACTO ANALYSIS HERE SHOULD REALLY BE VERY SIMPLE.
THE DEFENDANT'S CLAIM THAT THIS MOTION, THIS ADDITION OF THE CRIME-FRAUD
EXCEPTION TO THE WRITTEN RULES VIOLATED THE FOURTH DEFINITION, THE FOURTH CALL CALLED
DETER DEFINITION. AND THAT DEFINITION COULD BE POILD DOWN IT A SIMPLE PHRASE
WHICH IS VOIMENTS EX POST FACTO IF IT RECEIVES LESS OR DIFFERENT TESTIMONY IN ORDER
TO CONVICT THE OFFENDER. THAT'S THE KEY ANALYSIS HERE. AND THIS PROVISION
HAS BEEN, AS FAR AS I'M AWARE, UNIVERSALLY INTERPRETED AS APPLYING TO CHANGES IN THE
LAW THAT WOULD LOWER EITHER THE QUANTUM OF EVIDENCE, THE SUFFICIENCY OF
EVIDENCE OR THE BURDEN OF PROOF FOR THE STATE IN ORDER TO PAINT A LAWFUL CONVICTION.
SO THE WORRY HERE IS IF, THE WORRY HERE IS IF THE LAW AS IT HAD STOOD AT THE
DATE OF THE OFFENSE, IF DEFENDANT COULD NOT HAVE BEEN CONVICTED UNDER THE LAWS
AS OF THE DATE OF THE OFFENSE BUT THEN THE LAW HAS CHANGED AND NOW THE DEFENDANT
CAN BE CONVICTED OF THAT BASED ON THE EXACT SAME EVIDENCE THAT PRESENTED EACH TIME.
NOW THE SITUATION WE HAVE HERE IS COMPLETELY DIFFERENT. THE
RULE CHANGE HERE DOES NOT CHANGE THE QUANTUM OF EVIDENCE REQUIRED FOR A LAWFUL
CONVICTION, DOES NOT CHANGE THE BURDEN OF PROOF. IT CREATES THE POSSIBILITY
THAT ADDITIONAL EVIDENCE MAY COME IN AND AS THERE'S BEEN DISCUSSION OF CARMEL
DISCUSSED AT LENGTH, HOW THAT SORT OF CHANGE DOES NOT IMPLICATE EX POST
FACTO AND, IN FACT, DEFENDANT, NOBODY IN THIS CASE HAS EVER CITED TO A SIMPLE
AUTHORITY THAT SAYS THAT THIS SORT OF LAW CHANGE THAT POTENTIALLY ALLOWS
IN MORE EVIDENCE SHOULD COME IN UNDER THAT FOURTH CALLED DETER CATEGORY. THERE'S
NO SUPPORT FOR THAT WHATSOEVER. JUSTICE ALBIN: COUNSEL, YOU
HEARD THE CHIEF JUSTICE'S HYPOTHETICAL GIVEN TO YOUR FELLOW COUNSEL. ASSUME
THAT THESE TEXT MESSAGES WERE EITHER THE ONLY EVIDENCE OR THE ESSENTIAL EVIDENCE
FOR A CONVICTION. AND PREVIOUSLY IT WOULD NOT HAVE BEEN ADMITTED AND, THEREFORE,
THERE WOULD NOT HAVE BEEN SUFFICIENT PROOF TO FIND THE DEFENDANT GUILTY. IS IT
YOUR ARGUMENT THE SAME. WILLIAM P. COOPER-DAUB: I DON'T SEE
HOW THAT WOULD AFFECT THE ANALYSIS. IF IN ROSE THE HEARSAY EVIDENCE HAD BEEN
THE ONLY EVIDENCE AGAINST ROSE AND SO THE,. JUSTICE ALBIN:
I'M LOOKING AT ALL THE DOMESTIC VIOLENCE, LESS OR DIFFERENT, DIFFERENT
TESTIMONY. WILLIAM P. COOPER-DAUB: YES. IT ALLOWS
CONVICTION ON LESS OR DIFFERENT TESTIMONY. SO THE QUESTION RESPECTFULLY, YOUR HONOR,
IS NOT CAN DIFFERENT TESTIMONY COME IN. THE TESTIMONY IS, I'M SORRY, PARDON
ME, THE QUESTION IS WOULD THIS, DOES THE CHANGE IN A CONVICTION BASED ON DIFFERENT
TESTIMONY. SO IT'S NOT A CASE SPECIFIC, WE WOULDN'T LOOK AT IT CASE BY CASE AND
SAY WELL, HERE, MAYBE IT ALLOWED CONVICTION ON DIFFERENT TESTIMONY AND
HERE IT DIDN'T. BUT IT'S ALL ABOUT THE CHARGE IN THE LAWS, DOES IT CHANGE THE
EVIDENCE NECESSARY TO HANDLE OFF A 56. SO WHETHER IT'S THE ONLY EVIDENCE
ARE NOT MAKES NO DIFFERENCE TO THE ANALYSIS. CHIEF JUSTICE
RABNER: THERE'S NO FAIRNESS COMPONENT AS YOU UNDERSTAND IT THAT WOULD AFFECT THE
ANALYSIS, IS THAT WHAT WE'RE HEARING FROM YOU? WILLIAM P.
COOPER-DAUB: WELL, I MEAN THE QUESTION OF FAIRNESS, SO THE QUESTION OF FAIRNESS
ADDRESSED BY EX POST FACTO IS FAIRNESS IN TERMS OF NOTICE TO CITIZENS OF
WHAT IS A CRIME. SO YOU HAVE TO GIVE NOTICE. IF YOU TO THIS YOU CAN BE CONVICTED
OF A CRIME. THE QUESTION HERE WAS NOT IS WHAT THEY'RE DOING ILLEGAL. THEY KNEW
THEY WERE COMMITTING A CRIME. THEY WERE HOPING TO GET AWAY IT.
JUSTICE ALBIN: IT'S NOTICE OF WHETHER OR NOT YOUR COMMUNICATIONS ARE PROTECTED.
SO DO YOU TAKE POSITION OF YOUR COUNSEL THAT IF THE LEGISLATURE HAD ABOUT BRO
GRADE THE MARITAL PRIVILEGE YOUR ARGUMENT WOULD BE THE SAME, IT COMES IN. IT'S A
RULE OF EVIDENCE THAT COULD BE ABOLISHED AT ANY PARTICULAR TIME. THE FACT
THAT YOU RELIED ON IT IS IMMATERIAL. DO YOU ASCRIBE TO THAT POSITION?
WILLIAM P. COOPER-DAUB: YES, YOUR HONOR. AS DEFENDANT, IN FACT, NOTED EARLIER
IN HER ARGUMENT THE PRIVILEGE IS A CREATION OF COMMON LAW AND SO THE
LEGISLATURE HAS THE ABILITY, NOW, IT'S CODIFIED AND THE LEGISLATURE HAS THE ABILITY TO
CHANGE STATUTES. NOW, RE PEELING THE MARITAL COMMUNICATIONS PRIVILEGE IS
PROBABLY A TERRIBLE IDEA BUT EVERYTHING THAT'S A BAD IDEA IS NOT UNCONSTITUTION.
JUSTICE ALBIN: YOUR POSITION IS TO BE -- IF IT IS REVEALED
IT WOULD APPLY RETROACTIVELY AND THE COMMUNICATIONS WOULD COME INTO EVIDENCE,
CORRECT? WILLIAM P. COOPER-DAUB: MY POSITION IS IT WOULD
APPLY PROSPECTIVELY TO ALL FUTURE CASES WHICH IS HOW RULES OF EVIDENCE ARE TRADITIONALLY
APPLIED. THAT'S SORT OF THE CORE OF EX POST FACTO, TOO. YOU CAN SEE HOW
THE WAY THESE DEFINITIONS THAT WE SEE IN CALDER WORK SORT OF FITS IN WITH THEM
JUST SUBSTANTIVE PROCEDURAL DISC TWINS IS THAT THINGS THAT ARE, YOU KNOW,
CHANGING WHAT'S A CRIME, WHAT'S LAWFUL TO DO IN THE PAST IMPLICATE EX POST FACTO,
WHAT YOU CAN BE CONVICTED FOR HOW A CONVICTION, WHAT THE STATE MUST PROVE
IN ORDER TO HAND A CONVICTION IS SUBSTANTIVE AND VIOLATES EX POST FACTO AND IT
PERTAINS IT WHAT EVIDENCE CAN COME IN THAT IS NOT. THE DEFENDANT
ALSO DISCUSSED HERE, THE DEFENDANT SAID THAT THAT CARMEL ACTUALLY WOULD BE A
DISTINCTION FOR EX POST FACTO PURPOSES FOR SUBSTANTIVE AND PROCEDURAL LAWS. AND,
IN FACT, CARMEL DID THE EXACT OPPOSITE. I WANT IT POINT OUT THAT CARMEL ON PAGE
539 SAID IT ELIMINATED THAT DEVELOPED IN OUR CASES WHICH PURPORTED TO DEFINE THE
SCOPE OF OUR CLAUSE BETWEEN LAWS INVOLVING SUBSTANTIAL PROTECTIONS THAN THOSE
THAT ARE MADE MERELY PROCEDURAL. IT GOES OS ON TO SAY THAT IS IT'S THE CALDER
CATEGORIES. WHETHER IT'S SUBSTANTIVE OR PROCEDURAL DOES NOT MATTER FOR EX POST
FACTO ANALYSIS. WHERE THAT MAY COME INTO PLAY IS WERE WE GET TO THE STATUTORY
CONSTRUCTION SECTION BECAUSE CLEARLY DEFENDANT, I THINK EVERYONE IS ON THE
SAME PAGE, THAT SUBSTANTIVE LAWS ARE APPLIED PERSPECTIVELY IN TERMS OF ACTS THEY
GOVERN AND PROCEDURAL RULE CHANGES APPLY PERSPECTIVE ACTIVELY IN FUTURE
CASES REGARDLESS OF WHEN THE ACTS BELOW OCCUR. WE CAN SEE FROM MANY WAYS THAT THIS
IS INTENDED TO REALLY BE A PROCEDURE AND ONE THING WE CAN LOOK AT IS THAT THIS
COURT AND THE LEGISLATURE AND THE GOVERNOR ADOPTED THIS RULE CHANGE THROUGH THE
EVIDENCE ACT. IT'S NOT JUST THE CONTROL OF ENTRY RULES AND INDICATES THAT THIS
PROCEDURAL PURPOSE BUT ALSO THE TERMS OF THE EVIDENCE ACT, IN FACT, SAY THAT EVIDENCE,
RULES PASSED THROUGH THE EVIDENCE ACT AN NOT CHANGE SUBSTANTIVE RIGHTS.
SO FOR THIS COURT AND THE LEGISLATURE OR THE GOVERNOR TO DO ALL IT SAID THE ADOPTION
OF THE EVIDENCE ACT IS A CLEAR INDICATOR THAT IT DOES NOT IMPACT SUBSTANTIVE
RIGHTS AND OF COURSE WHERE WERE THIS COURT TO HOLD THAT PRIVILEGES ARE SUBSTANTIVE
RIGHTS. JUSTICE ALBIN: HOW ABOUT THE LAW AGAINST IN
INCRIMINATION? THAT COMMON LAW RIGHT IN NEW JERSEY HAS NOT BEEN ADOPTED IN OUR
STATE CONSTITUTION. ARE YOU TELLING ME THAT THAT IS NOT A SUBSTANTIVE RIGHT?
WILLIAM P. COOPER-DAUB: IT HAS BEEN ADOPTED,.
JUSTICE ALBIN: FORGET ABOUT THE UNITED STATES CONSTITUTION. IT IS IN OUR RULES OF
EVIDENCE. IT IS NOT IN OUR CONSTITUTION. ARE YOU SAYING THAT THAT THE LAW
AGAINST IN INCRIMINATION IS NOT A SUBSTANTIVE RIGHT.
WILLIAM P. COOPER-DAUB: WELL IT'S A CONSTITUTIONAL RIGHT SO I THINK THE QUESTION
WOULD COME DOWN THERE MAY BE, EVEN IF THE LEGISLATURE ABOLISH THE EVIDENTIARY
RULE END ABSCONDING THE RULE AGAINST SELF-INCRIMINATION IT'S STILL
UNCONSTITUTIONAL. JUSTICE ALBIN: ASSUME THE CONSTITUTION DIDN'T
APPLY UNDER THE INDEPENDENT CORPORATION DOCTRINE. IN OUR STATE SINCE THE FOUNDING
OF OUR STATE, THE LAW AGAINST SELF-INCRIMINATION HAS BEEN A COMMON
LAW RIGHT. ARE YOU SAYING THAT THAT WOULD NOT BE A SUBSTANTIVE RIGHT?
WILLIAM P. COOPER-DAUB: I'M NOT. I MEAN THE PROBLEM WOULD BE THEN THAT THE COURT
WOULD NOT BE ABLE TO, THE COURT AND THE LEGISLATURE WOULD NOT BE ABLE TO
PASS A LAW REVOKING THE LAW, THE RULE AGAINST SELF-INCRIMINATION BECAUSE THAT WOULD BE
A SUBSTANTIVE RIGHT. SO, IN FACT, IF THE COURT WERE, AND THE LEGISLATION
WERE MAKING CHANGES TO SUBSTANTIVE RIGHTS TO THE EVIDENCE ACT THEN THOSE CHANGES
WOULD BE VOID. CHIEF JUSTICE RABNER: I WANT TO COME BACK TO
THE RIGHT THAT WE'RE TALKING ABOUT HERE. WILLIAM P. COOPER-DAUB:
CERTAINLY. CHIEF JUSTICE RABNER: THE MARITAL PRIVILEGE
ENCOMPASSES A NUMBER OF THINGS. WAS THERE A SUBSTANTIVE RIGHT TO SPEAK WITH ONE'S
SPOUSE IN A WAY THAT FURTHER CRIMINAL ACTIVITY? WILLIAM P.
COOPER-DAUB: NO. THAT'S EXACTLY WHAT TERRY FOUND WAS THAT THERE WAS NO RIGHT TO
DO THAT. AS I BELIEVE I PRINTOUT IN MY BRIEF OFTEN, IN SOME CASES IF THEY ARE
PLANNING A FIRST OR SECOND-DEGREE CRIME OR A DRUG DISTRIBUTION CRIME THAT
CONVERSATION ITSELF FORMS THE CRIME OF CONSPIRACY. SO IT'S NOT JUST A RIGHT TO HAVE
IT, IT'S ILLEGAL TO HAVE IT. SO, NO. SO TERRY VERY CLEARLY SAID THIS IS NOT
PART OF THE RIGHT. JUSTICE ALBIN: IF THAT'S THE CASE WAS IT
NECESSARY TO AM, WHY DIDN'T WE HAVE TO AMEND THE RULE? WILLIAM
P. COOPER-DAUB: IT WAS CURATIVE AMENDMENT TO MAKE IT CLEAR TO FIRST BLOW. I'M
NO AWARE OF ANY COURT OF HAVING APPLIED THE RULE TO,. JUSTICE
ALBIN: IS IT YOUR ARGUMENT WE DIDN'T HAVE TO AMEND THE RULE, WE JUST DID IT FOR
WHAT? FOR THE FUN OF IT? WILLIAM P. COOPER-DAUB: WELL, I WOULD
ANTICIPATE THAT THE RULES ARE AMENDED ALL THE TIME IN ORDER TO MAKE THEM
CLEARER TO THE LAWYERS AND JUDGES WHO USE THEM. SO THIS IS A GOOD WAY OF MAKING IT
CLEAR AND WE SAY WE RECOGNIZE THAT THIS MARITAL COMMUNICATIONS PRIVILEGE
AS WRITTEN,. JUSTICE ALBIN: I MAY BE MISTAKEN ABOUT THIS BUT
THAT TERRY I DON'T THINK WE APPLIED THE CRIME FOR AN EXCEPTION IN THAT CASE. WE
LEFT IT TO THE LEGISLATURE TO AMEND, CORRECT OR AM I MISTAKEN ABOUT THAT?
WILLIAM P. COOPER-DAUB: YOU DID SEND IT TO THE LEGISLATURE
THE SAY WAY YOU DID IN BYRD. JUSTICE ALBIN: SO WE DIDN'T ON OUR
OWN SAY THIS IS A NATURAL EXCEPTION TO MARITAL PRIVILEGE?
WILLIAM P. COOPER-DAUB: THE GIST OF IT WAS NOT BENDSED TO BE WITHIN THE MARITAL
PRIVILEGE. IT WAS NOT INTENDED TO BE PART OF THAT PRIVILEGE. JUDGE
JOSE L. FUENTES: DOESN'T THE COURT IN TERRY SPECIFICALLY SAY THAT AS WRITTEN THIS
KIND OF EVIDENCE DOES NOT COME IN, AS WRITTEN AT THE TIME BEFORE THE
AMENDMENT SPECIFICALLY SAYS THAT? WILLIAM P. COOPER-DAUB: I BELIEVE
IT'S THE LANGUAGE, THERE WAS SPECIFIC LANGUAGE ABOUT THE WAY IT WAS WRITTEN
AND NOW I CANNOT FIND IT. I APOLOGIZE YOUR HONORS I KNOW IT DID SAY ALONG THOSE
LINES. I THINK THE GIST OF THAT WAS THAT, YOU KNOW, IT'S CLEAR THAT AS OF
-- AS IT WAS LAID OUT IT'S CLEAR THAT IT COULD BE,. JUDGE JOSE L.
FUENTES: I THINK MADE A DEFINITIVE STATEMENT THAT THAT WOULD NOT BE PERMITTED
HENCE THE AMENDMENT. WILLIAM P. COOPER-DAUB: WELL, THAT MAY
BE, YOUR HONOR. I'M NOT SURE. THE POINT I THINK OF TERRY WAS THAT THIS
WAS NOT EVER BENDED TO BE PART OF THE PRIVILEGE AND THAT IT'S NOT A RIGHT THAT THE
COURT OR THE SOCIETY FEELS IS WORTH PROTECTING. LOOKING BACK
AT THE IDEA OF INTER PRETTYING PRIVILEGE. JUSTICE PATTERSON:
TO FOLLOW THE ARGUMENT TO ITS LOLL CONCLUSION THE SUBSTANTIVE RIGHT HERE WOULD
HAVE TO BE BECAUSE THE MARITAL PRIVILEGE IS NOT SUBJECT TO THE AMENDMENT,
THE SUBSTANTIVE RIGHT WOULD HAVE TO BE IF THE COMMUNICATION WERE WITHIN THE CRIME-FRAUD
EXCEPTION AS EXISTED AS EXCEPTIONS TO OTHER RULES OF EVIDENCE THERE WAS A
SUBSTANTIVE RIGHT TO ENGAGE IN THAT COMMUNICATION WITHOUT A CONCERN ABOUT
DISCLOSURE, RIGHT, THAT WOULD HAVE BEEN THE SUBSTANTIVE RIGHT, NOT THE GENERAL
MARITAL PRIVILEGE. WILLIAM P. COOPER-DAUB: THAT'S RIGHT, YOUR
HONOR. JUSTICE ALBIN: BUT, I DON'T WANT TO BE TO BEAT A DEAD
HORSE HERE. BUT IF THAT WERE THE CASE THEN WE WOULD NOT HAVE PERMITTED THE DEFENDANTS
IN TERRY TO HIDE BEHIND THESE SPOUSE PRIVILEGE. THEY WOULD HAVE BEEN
STRIPPED OF IT THEN. WILLIAM P. COOPER-DAUB: I BELIEVE TERRY WAS
REMAND AND IT WAS LEFT UP TO THE TRIAL COURT WHETHER TO APPLY THE EXCEPTION UPON
REMAND OR NOT. SO I'M NOT SURE THAT IT CAN BE CHARACTERIZED AS THE COURT
ALLOWING THE DEFENDANTS TO HIDE BEHIND IT MORE THAN SORT OF DELAYING THE DISCUSSION
FOR ANOTHER DAY. LOOKING BACK AT THE SORT OF WAY THE PRIVILEGE WORKS IN TERMS
OF THE STATUTORY CONSTRUCTION, IT'S VERY CLEAR THAT PRIVILEGES, THE PRIVILEGE AND
THE CRIME-FRAUD EXCEPTION ARE STRUCTURED IN TERMS OF WHAT HAPPENS AT
PROCEEDINGS. SO THERE'S BEEN A LOT OF DISCUSSION ABOUT, WELL, SOMEONE, A SPOUSE
MAKES A STATEMENT AND IT'S PRIVILEGED AND THEN IT'S TAKEN AWAY. WELL, THAT
SIMPLY DOESN'T WORK THAT WAY. YOU CAN'T MAKE A STATEMENT AND SAY MY STATEMENT IS
PRIVILEGED BECAUSE THERE ARE ALL SORTS OF DIFFERENT EXCEPTIONS. SO YOU REALLY
CANNOT MEASURE WHETHER A STATEMENT IS PRIVILEGED UNTIL YOU'RE TRYING TO ASSERT
THAT PRIVILEGE IN SOME SORT OF PROCEEDING DOWN THE ROAD. BECAUSE IF THERE'S A
SUBSEQUENT ACTION BETWEEN THE SPOUSES THEN NO COMMUNICATION 20 THEM WAS
PRIVILEGED. IF THERE'S A SUBSEQUENT ACTION REGARDING I THINK A SPOUSAL OR CHILD
ABUSE THEN STATEMENTS ARE NOT PRIVILEGED. THERE'S NO MARITAL PRIVILEGE
APPLICABLE IN THAT CASE. SO IT'S SIMPLY NOT TRUE TO SAY THEY KNEW THE STATEMENT
WAS PRIVILEGED AND IT COULD NEVER BE DISCLOSED BECAUSE IT CAN BE DISCLOSED
BASED ON CIRCUMSTANCES. SO WHAT THE RULE DID IS SAY HERE'S AN ADDITIONAL CIRCUMSTANCE
IN WHICH, SO THE PRIVILEGE AND THE EXCEPTION ITSELF ARE REALLY FOCUSED ON
THE PROCEDURE AND NOT ON THE STATES ITSELF. IT CERTAINLY COULD HAVE BEEN WRITTEN
IN A DIFFERENT WAY IT HAD FOCUSED ON THE STATEMENTS BUT IT WAS NOT.
JUST ONE OTHER THING AUTOMATIC POINT OUT IF THERE'S A RULING THAT THIS AMENDMENT,
ANOTHER INDICATION THAT THE LEGISLATURE INTENDED THIS AMENDMENT TO FUNCTION
PERSPECTIVELY AND I MEAN PERSPECTIVELY IN FUTURE CASES BUT REGARDLESS OF WHEN
STATEMENTS WERE MADE IS THE AMENDMENT IN 2015 MADE TWO CHANGES. IT ADDED
THE CRIME-FRAUD EXCEPTION AND IT ALSO EXPANDED THE PRIVILEGE TO PEOPLE, TO PARTNERS
IN CIVIL YOOUNS. NOW SEX SAME MARRIAGE WAS REALLYED IN 2013. SO TWO YEARS
BEFORE THE CIVIL UNION LANGUAGE WAS ADDED TO PRIVILEGE. THERE ARE STILL CIVIL
UNIONS, THEY STILL EXIST BUT PRESUMABLY FEWER THAN YOU WOULD HAVE HAD HAD SAME
SEX MARRIAGE NOT BEEN LEGALIZED. SO THE NEED FOR THE LEGISLATURE TO ADD CIVIL
UNIONS TO THIS PRIVILEGE AND SAY, WELL, WE ONLY MEAN THAT IN STATEMENTS AFTER
WE'VE ADDED CIVIL UNIONS. ALL THE STATEMENTS MADE BY CIVIL UNION
PARTNERS BETWEEN 2007 AND 2015 CAN STILL COME IN WILLY-NILLY BECAUSE THEY WEREN'T
PRIVILEGED. SO THERE ARE MANY WAYS IN WHICH IT'S CLEAR THAT
THE LEGISLATURE UNDERSTOOD THIS TO BE A PROCEDURAL CHANGE AND WHICH IT SHOULD
BE INTERPRETED AS A PROCEDURAL CHANGE, NOT THE LEAST IS BECAUSE INTERPRETING
AS A SUBSTANTIVE CHANGE CAUSES MANY OTHER POTENTIAL PROBLEMS.
JUDGE JOSE L. FUENTES: TO GET BACK TO MY ORIGINAL QUESTION. IF YOU FIND THAT TERRY
WHAT YOU'RE LOOKING FOR IN TERRY IS AT PAGE 229. WILLIAM P.
COOPER-DAUB: THANK YOU, YOUR HONOR. EARLIER THAN I THOUGHT.
JUDGE JOSE L. FUENTES: IT SAYS IN ITS PRESENTS FORM THE PRIVILEGE PROTECTS
COMMUNICATION BETWEEN SPOUSES ABOUT CRIMINAL ACTIVITIES THAT ARE JOINTLY
PLANNING OR COMMITING AND THAT THE ASPECT, AND THE ASPECT OF THE PRIVILEGE DOES
NOT SERVE ITS PURPOSE AND SDE MEANS THE PUBLIC INTEREST IN JUDGE. THAT'S WHY
IT'S NEEDED TO BE AMENDED. WILLIAM P. COOPER-DAUB: THAT'S RIGHT,
YOUR HONOR. SO I THINK, WHAT THEY'RE SAYING THERE IS ESPECIALLY FORM IT
COULD APPLY THIS WAY. THAT'S NOT THE WAY IT'S SUPPOSED TO APPLY.
JUSTICE ALBIN: WE AFFIRM THE APPELLATE DIVISION WHICH REVERSED THE CONVICTIONS
BASED UPON THE ADMISSION OF THE SPOUSAL PRIVILEGE. AM I MISTAKEN ABOUT
THAT? IN TERRY. WILLIAM P. COOPER-DAUB: YES, YOUR HONOR, THAT'S
CORRECT. CHIEF JUSTICE RABNER: THERE WAS NO REMAND IN THE
CASE. WILLIAM P. COOPER-DAUB: YOU'RE RIGHT, YOUR
HONOR, I'M SORRY I MUST HAVE BEEN. I APOLOGIZE, YOUR HONOR. I MUST HAVE BEEN
COMPLETELY ON ANOTHER CASE. CHIEF JUSTICE RABNER: WHAT TERRY DID
WAS CONSIDER THE ARGUMENT THAT THE STATE WAS ADVANCING THAT THERE SHOULD NOT
BE PROTECTION FOR THE SORT OF COMMUNICATIONS THAT WERE LATER EXEMPTED FROM
IT AND MADE A RECOMMENDATION. BUT IT WASN'T A RULING. I BELIEVE JUDGE
FUENTES CORRECTLY REFERRED YOU TO THE HOLDING. WILLIAM P.
COOPER-DAUB: YOU'RE RIGHT YOUR HONORS. I APOLOGIZE. I WOULD NOTE THAT TERRY ITSELF
ACTUALLY SPECIFICALLY DID REFER TO THIS CHANGE AS BEING COMPARABLE TO THE
CHANGES IN BYRD AND DR WHICH OF COURSE WERE BOTH APPLIED RETROACTIVELY. SO IN
TRYING TO SEPARATE A BROAD DISTINCTION BETWEEN PRIVILEGES AND OTHER RULES
THIS COURT IN TERRY, YOU KNOW, SAID THAT IT'S COMPARABLE AND THAT'S ON PAGE 243
OF TERRY. JUSTICE ALBIN: WE SAID IT WAS COMPARABLE FOR REASONS
THAT IT HAD, THROUGH THE EVIDENCE ACT OF 1960. WE DIDN'T AMEND THE RULE OURSELVES.
THAT'S WHY WE WERE REFERRING TO BYRD, CORRECT? CHIEF JUSTICE
RABNER: I'M NOT SURE THAT TERRY ANSWERS THE QUESTION. TERRY SAID THIS WOULD BE
A FUNDAMENTAL CHANGE. THEREFORE, AS IN BYRD WE'RE SENDING IT TO THE
LEGISLATURE. IT DOESN'T ADDRESS WHETHER A RULE THE LEGISLATURE WILL YET TO ADOPT
WOULD BE RETROACTIVELY OR PURELY, WERE YOU AGREE. WILLIAM P.
COOPER-DAUB: YES. IT SAID IT WAS A FUNDAMENTAL CHANGE TO THE RULES OF EVIDENCE
IT DID OFTEN COUCH IT IN THOSE TERMS. THIS IS A CHANGE TO THE EVIDENTIARY
RULES. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE TO
ADD IT YOUR PRESENTATION? WILLIAM P. COOPER-DAUB: NO, YOU WERE.
WITH ALL THAT THE ATTORNEY GENERAL WOULD SIMPLY ASK FOR THE CASE TO BE
AFFIRMED. CHIEF JUSTICE RABNER: SMJ, REBUTTAL.
ELIZABETH C. JARIT: YES, YOUR HONOR. AS YOU JUST SMOETD TERRY DID SAY THIS WOULD BE
A FUNDAMENTAL CHANGE TO THE PRIVILEGE. I KNOW THERE'S A LOT OF RELIANCE
ON THE FACT THAT THIS COURT HAS SAID IT WAS NEVER INTENDED FOR THESE KIND OF
COMMUNICATIONS TO BE PART OF THE PRIVILEGE. HOWEVER, THE PLAIN LANGUAGE. RULE
DID INCLUDE ALL OF THIS, OF THESE TYPES OF COMMUNICATIONS AS UNDER THE PRIVILEGE
AND INTERPRETING A PRIVILEGE THAT DOES NOT HAVE THIS EXCEPTION TO INCLUDE
THIS EXCEPTION TO MEAN, WOULD HAVE A DETRIMENTAL IMPACT ON ALL OF THE PRIVILEGES.
A PERSON WOULD NOT BE ABLE TO JUST LOOK AND RELY INCLUDING LAWYERS AT THE
PLAIN LANGUAGE OF THE RULES AND BELIEVE THAT CONVERSATIONS THAT THEY ARE HAVING
WITH THEIR CLIENTS, THEIR SPOUSES, THEIR DOCTORS, WOULD REMAIN CONFIDENTIAL
BECAUSE THEY WOULD BE AFRAID THAT SOME FUTURE CASE YEARS FROM NOW MIGHT INTERPRET
THE PRIVILEGE IN ANOTHER WAY TO INCLUDE SOME EXCEPTION THAT IS NOT THERE
AT ALL. I THINK THIS WOULD HAVE A HUGE DETRIMENTAL IMPACT NOT ONLY TO THE
FUNDAMENTAL RIGHTS THAT ARE BEING PROTECTED. ALSO TO SPEECH WHICH I THINK
THE ACLU TALKED ABOUT IN THEIR BRIEF. THE NEXT POINT I WOULD LIKE TO MAKE IS
I WOULD LIKE TO RESPOND THE CITATION TO ALL THE OUT-OF-STATE CASES. THOSE CASES
DEALT PRIMARILY WITH THE SPOUSAL TESTIMONIAL PRIVILEGE WHICH THE
PURPOSE OF THAT PRIVILEGE IS TO ALLOW A SPOUSE TO DECLINE TO TESTIFY AGAINST THEIR
OTHER SPOUSE. AND THE BEHAVIOR THAT THEY'RE CONCERNED WITH IS MAKING SURE
THAT A SPOUSE IS NOT FORCED TO TESTIFY AGAINST THEIR SPOUSE WHICH WOULD EITHER
ONE DESTROY THE RELATIONSHIP OR, TWO, FORCE THAT SPOUSE TO COMMIT PERJURY
ESSENTIALLY ON THE STANDS. SO THE BEHAVIOR OCCURS AT THE OF TRIAL SO IT MAKES
SENSE FOR THE RULE TO, YOU KNOW, THERE'S NO REAL RETROACTIVE APPLICATION THERE
BECAUSE IT CONCERNS THE BEHAVIOR AT THE TIME OF TRIAL. KNOWS CASES ARE DISTINGUISHABLE
FROM THE MARITAL COMMUNICATIONS PRIVILEGE WHICH CONCERNS THE OUT OF COURT
BEHAVIOR THAT COULD HAVE TAKEN PLACE A YEAR PRIOR POTENTIALLY, THE COMMUNICATIONS
BETWEEN THE SPOUSES. THE THIRD POINT I'D LIKE TO MAKE IS THAT
THESE TEXT MESSAGES DID NOT MERELY RELATE TO THE CONSPIRACY CHARGE THAT
MS. BAILEY WAS ACQUITTED OF. THEY WERE RELIED ON BY THE STATE AS EVIDENCE OF HER
INTENT AND HER ALLEGED PURPOSE TO SECURE A BENEFIT IN THE MISCONDUCT STATUTES
AND THAT WAS UNDERSTOOD BY THE PROSECUTOR DURING SUMMATION. FOURTH,
I WOULD LIKE TO POINT OUT THAT THE LESS OR DIFFERENT TESTIMONY LANGUAGE OF THE
CALDER'S FOURTH CATEGORY. THIS IS CLEARLY ALLOWING DIFFERENT TESTIMONY
HERE I'LL JUST -- AS I JUST NOTED THE STATE RELIED ON THESE TEXT MESSAGES TO ESTABLISH
ONE OF THE ELEMENTS OF THE OFFENSE. AND THERE WAS A MOTION IN THIS CASE
CONCERNING THESE TWO CHARGES IN PARTICULAR. BECAUSE THE STATE HAD VERY LITTLE
EVIDENCE BESIDES THESE TEXT MESSAGES CONCERNING HER PURPOSE AND INTENT.
AND THE COURT SAID IT'S GOING TO GO TO THE JURY. AND SO I THINK THIS DOES RELATE
TO A CHANGE IN ALLOWING EVIDENCE TO SUFFICE AS A QUANTUM OF EVIDENCE TO
ESTABLISH THE ELEMENT OF THE OFFENSE AS WELL. UNLESS YOUR HONOR VS.
ANY OTHER QUESTIONS. CHIEF JUSTICE RABNER: THANK YOU, MS. JARIT.
THANK YOU TO ALL COUNSEL